Feds Using 18th Century Law Against 21st Smartphones


Cyrus Farivar reports for Ars Technica:

Newly discovered court documents from two federal criminal cases in New York and California that remain otherwise sealed suggest that the Department of Justice (DOJ) is pursuing an unusual legal strategy to compel cellphone makers to assist investigations.

In both cases, the seized phones—one of which is an iPhone 5S—are encrypted and cannot be cracked by federal authorities. Prosecutors have now invoked the All Writs Act, an 18th-century federal law that simply allows courts to issue a writ, or order, which compels a person or company to do something.

Some legal experts are concerned that these rarely made public examples of the lengths the government is willing to go in defeating encrypted phones raise new questions as to how far the government can compel a private company to aid a criminal investigation.

Two federal judges agree that the phone manufacturer in each case—one of which remains sealed, one of which is definitively Apple—should provide aid to the government.


And here’s a bit more:

Alex Abdo, an attorney with the American Civil Liberties Union, wondered if the government could invoke the All Writs Act to “compel Master Lock to come to your house and break [a physical lock] open.”

“That’s kind of like the question of could the government compel your laptop maker to unlock your disk encryption?” he said. “And I think those are very complicated questions, and if so, then that’s complicated constitutional questions whether the government can conscript them to be their agents. Then there’s one further question: can the government use the All Writs Act to compel the installation of backdoors?”

But, if Apple really can’t decrypt the phone as it claims, the point is moot.

If I understand correctly how iOS encryption works, then it’s true that Apple couldn’t crack your iPhone or iPad, even under court order and with Tim Cook being waterboarded.

But it’s still up to the user to password protect and biometric protect their devices.

If you have an iPhone 5S or later, and iPad Air 2, or an iPad Mini 3, you’ll want to add the extra convenience of using TouchID. The Feds have argued that the police may compel you to use your fingerprint to unlock a device, just like they may compel you to provide your fingerprints upon arrest.


But there are a couple things you need to know.

First, there’s some doubt as to whether the “thumbprint test” will stand. When taken into custody, your fingerprints are taken to establish your identity and to keep a record of it. But using your thumbprint to unlock your phone is an entirely different matter, enabling the police to rifle through your personal papers and effects without a warrant or even your permission. Yes, they’re both “just fingerprints,” but to entirely different ends — one constitutional, the other not.

Also, iOS devices automatically disable Touch ID after ten failed attempts, or after a power shutdown, or after any other loss of power. At that point, only your password can wake the device, and the courts have said that the police may not force you to provide your password without a warrant.

So use Touch ID, don’t use any obvious, easy-to-guess passwords, and shut down your device at the first sign of trouble. In the worst case, smash the thing on the ground, because they can’t force you to unlock a device which no longer works.


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