October 31, 2015

After guilty plea, judge confused as to why prosecutors still want iPhone unlocked

After guilty plea, judge confused as to why prosecutors still want iPhone unlocked | Ars Technica

Federal prosecutors have said that they are moving forward in their attempt to compel Apple to unlock a seized iPhone 5S running iOS 7, even after the defendant in a felony drug case has now pleaded guilty.

The judge in the case, United States Magistrate Judge James Orenstein, said in a Friday court filing that he is confused.

The defendant, Jun Feng, whose trial was scheduled for next month, was originally charged with three counts of possessing and distributing methamphetamine.

On Thursday, Feng pleaded guilty to one count of conspiracy to distribute and possess with intent to distribute methamphetamine.

As the judge wrote Friday
In light of the fact that the defendant against whom evidence from the subject telephone was to be used has pleaded guilty, I respectfully direct the government to explain why the application is not moot. To the extent the response requires the disclosure of information occurring before a grand jury, the government may file its response under seal, along with a redacted version suitable for public access.The government’s move could suggest that it believes that Feng’s phone may contain data relevant to another ongoing case. Feng was charged in conjunction with six other defendants.

Perhaps they will argue they want see what is on the phone for sentencing,” Jennifer Granick, an attorney, and the head of the Stanford Center for Internet and Society, told Ars by e-mail.

But that type of information is likely less relevant in a drug case like this one than in other kinds of cases. Perhaps they hope to get a ruling they can appeal, and they don’t want to have to start over again. But that strategy doesn’t mean that this application isn’t moot.”

If Feng’s phone had iOS 8 or later installed—as 90 percent of iPhones do—this entire issue would likely be moot, as Apple now enables full encryption by default. In September 2014, Apple specifically said the move happened so it’s not technically feasible for us to respond to government warrants for the extraction of this data from devices in their possession running iOS 8.”

Citing an 18th-century law known as the All Writs Act, federal prosecutors had gone to the judge, asking him to force Apple to unlock the phone. At its core, this federal law simply allows courts to issue a writ, or order, which compels a person or company to do something.

In the past, feds have used this law to compel unnamed smartphone manufacturers to bypass security measures for phones involved in legal cases. The government has previously <a href=“http://arstechnica.com/tech-policy/2014/12/feds-want-apples-help-to-defeat-encrypted-phones-new-legal-case-shows/tried using this same legal justification against Apple as well.

However, for the first time, the judge invited Apple into the courtroom to present arguments as to why the judge should not order it to comply. Apple has made a compelling argument as to why it should not be forced to do the government’s bidding.

The government’s proffered reading of the All Writs Act, if carried to its logical conclusion, leads to disquieting results,” Ken Dreifach, an attorney representing Apple, wrote in his reply to the government earlier this month.

For example, if the government wanted to crack a safe, it could require the safe’s manufacturer to take possession of, or even travel to the location of, that safe and open it,” he continued. If the government wanted to examine a car, it could send the car to the manufacturer and require the manufacturer to perform the examination. The government could seemingly co-opt any private company it wanted to provide services in support of law enforcement activity, as long as the underlying activity was authorized by a warrant. The All Writs Act does not confer such limitless authority.”

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