FBI chief, Apple lawyer testify in first encryption hearing
Murderers use them, as do drug dealers and those who trade in child porn.
Sacramento-area law enforcement agencies are sitting on scores of powerfully encrypted iPhones they can’t mine for information on a variety of crimes. They’re closely watching the fight between Apple and the FBI over the government’s demand for help hacking into San Bernardino shooter Syed Farook’s phone.
The Sacramento County Sheriff’s Department, to name just one agency, has 88 iPhones in its property warehouse that have recent operating systems similar to Farook’s and block access to needed evidence, sheriff’s spokesman Sgt. Tony Turnbull said last week.
“How many would we like to unlock? All of them,” Turnbull said. “We seized them for a reason. We believe they may have evidence of a crime or evidence that could corroborate (or refute) witness or suspect statements.”
The problem for investigators is that an iPhone running Apple’s latest operating systems, iOS 8 or iOS 9, prevents anyone without the proper passcode from gaining access. Absent the unique code, encrypted data can’t be deciphered, and a security setting erases the phone’s memory after 10 failed passcode attempts.
The FBI is trying to get Apple to help defeat its own security measures.
The newer iPhones have much stronger protections than older iPhones or Google’s Android-based phones, which law enforcement technicians routinely crack.
I just came from homicide for eight years. Cellphone evidence was absolutely huge for us in getting arrests and successful prosecutions.
Sgt. Tony Turnbull, Sacramento County Sheriff’s Department spokesman
High-tech companies and privacy advocates have teamed up to try to stop the government’s efforts to break into Farook’s iPhone with Apple’s help.
“This case concerns an unprecedented law-enforcement effort to conscript an American technology company into creating software designed to weaken the security of its own devices – an effort that, if successful, would set precedent implicating the security and privacy of hundreds of millions of Americans,” the American Civil Liberties Union wrote in a court filing supporting Apple.
Law enforcement authorities say having access to cellphone data is essential for public safety.
Over the past two decades, cellphones have become another tool for investigators. And for years, prosecutors have introduced evidence at trial of cellphone usage, including calls placed, text messages sent and cell towers “pinged” in order to establish a defendant’s location at the time of a crime.
Some of that information is stored in the phone’s memory. Other data comes from providers such as Verizon or AT&T.
“I just came from homicide for eight years. Cellphone evidence was absolutely huge for us in getting arrests and successful prosecutions,” Turnbull said. About 95 percent of the 150 cases he worked on relied on cellphone evidence, he said.
In the San Bernardino case, the FBI wants to know if Farook’s work-issued cellphone contains records of communications or website visits that could further the investigation into the mass shooting in December that killed 14 people and wounded 22.
Apple said it already provided the data in its possession, including information Farook had uploaded to Apple’s cloud storage.
But Farook’s iPhone 5C hadn’t been backed up for weeks and might still contain valuable data, the FBI said.
At the request of government lawyers, a federal magistrate judge in Riverside ordered Apple last month to provide “reasonable technical assistance” to the FBI. That included creating a custom-made operating system that could be loaded onto Farook’s iPhone to disable its auto-erase function. Weakening the phone’s security would let the FBI submit millions of passcodes via computer.
The FBI insisted that the court’s order would apply only to Farook’s phone – essentially a one-time hack. But in testimony before the House Judiciary Committee this month, FBI Director James Comey acknowledged that the case could set a precedent for more such requests.
Apple has asked Judge Sheri Pym to reverse her order.
100Number of cellphone warrants executed by Roseville police last year
In court papers, the company argued the FBI’s tactics threatened Apple’s state-of-the-art protections and the security of millions of iPhones worldwide. Once a “backdoor” to the iPhone was created, it would be eagerly sought by other law enforcement agencies and could even be stolen by foreign governments and hackers, Apple said.
“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,” Apple said in its legal brief filed Feb. 25. “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.”
The company’s attorneys argued that forcing a private business to cooperate with the government to such a degree was unprecedented and unconstitutional. A federal magistrate judge in Brooklyn recently denied a similar, though less onerous, request by federal law enforcement officials, they noted.
Pym is scheduled to take up the case again March 22. Numerous high-tech companies, including Google and Facebook, along with the ACLU, filed briefs last week supporting Apple’s position.
Amid the growing controversy, some experts contend the FBI should figure out how to hack the newest iPhones, just as it did older phones and personal computers, without Apple’s help.
“Part of the conversation is whether the FBI has sufficient training and access to technology (to do its job). Asking the private sector to help is not the most efficient fulfillment of its law enforcement duties,” said Andrea Matwyshyn, a scholar at Stanford Law School’s Center for Internet and Society and a professor at Boston’s Northeastern University School of Law.
Forcing Apple to write a software program that defeats its hallmark security measures could violate several constitutional provisions, including the Fifth Amendment’s so-called Takings Clause, which says the government can’t take private property without just compensation, she said.
Matwyshyn said the court’s order could lead to a “slippery slope” of forcing technology companies to help law enforcement break into people’s private electronic information, the law professor said.
“What we’ve learned from the way the case has progressed between the Department of Justice and Apple is that it will clearly form a precedent, in one way or another, as to whether other law enforcement agencies will be able to request similar assistance from technology companies,” Matwyshyn said.
“It could open a Pandora’s box of access to consumers’ lives ... (and turn a variety of electronic products) into data-gathering devices for law enforcement.”
The FBI has asked Congress to intervene by updating federal laws that dictate the extent to which companies such as Apple must share their users’ private information with the government.
Some authorities insist the data that cellphones contain isn’t all that different from the information that detectives have gathered for years through home searches, wiretaps and other traditional methods. Judges have to sign warrants for most types of searches – including cellphones, they said.
“Thirty or 40 years ago, you’d be getting hold of someone’s day planner or Rolodex or phone log,” said Sgt. Kelby Newton, an investigator with the Roseville Police Department.
Police have long seized personal computers to extract incriminating evidence, he noted. A smartphone is essentially “a little mini laptop you have in your pocket, and a lot of people utilize it that way.”
Roseville police executed 100 cellphone warrants last year, Newton said.
Drug deals are often arranged via text messages, he said. And those who deal in child porn use the most secure phones to avoid detection.
Smart criminals don’t back up their data to the cloud or computers, and they don’t give out their passcodes, he said.
Now that Apple has taken cellphone security to a new level, detectives have to be able to access iPhones or risk losing vital evidence for solving crimes, local authorities said.
“Apple’s tech is so good that no one can defeat their passwords or security settings,” Newton said. “They made an effort to encrypt their phones to the point where the only person who can provide the password is the owner and no one else.”
“That’s the whole crux of the FBI-Apple argument,” he said. “You can’t force someone to reveal their numbers.”