If FBI Can Get Into A Device Running iOS 9, Why Does It Say It Still Needs Apple's Help To Get Into One Running iOS 7?
The questions raised by the DOJ announcing that it was, in fact, able to get in to Syed Farook's work iPhone continue to grow. The latest is that, if it could get into that phone, running the fairly secure iOS 9, why is it still fighting the case in NY where it's trying to get into a drug dealer's phone running iOS 7? As you may recall, the case in NY has been going on for longer than the San Bernardino one. It started back in October when the DOJ demanded Apple's help in getting into the iPhone of Jun Feng (a drug dealer who admitted guilt, but who claims he forgot the passcode) and magistrate judge James Orenstein stepped in to ask Apple if this was a reasonable request.
Then, earlier this month, Orenstein wrote a pretty thorough dismantling of the Justice Department's position over the All Writs Act. The DOJ then appealed that ruling, which is now sitting in front of a non-magistrate judge, Margo Brodie. Part of the DOJ's argument made in the appeal was that this case is very different from the San Bernardino case, because in this case the phone is using iOS 7, which means that Apple already has the key to get in, and it doesn't require any further "burden" in terms of writing new code. As we noted at the time, this seemed to make the DOJ's case a little stronger.
However, now that the FBI has broken into the iOS 9 device (even if it claims the hack only works on some phones), it seems to argue in the exact other direction. Getting into an iOS 7 device is comparatively quite easy according to a bunch of folks. Apple really only ratcheted up the security in iOS with default encryption in iOS 8 -- meaning that any decent forensics team should be able to get into the iOS 7 device without much difficulty. Remember, a key part of the (somewhat made up) test that the DOJ insists must be used in All Writs Act cases like this is whether or not the third party's help is "necessary."
And in this case, the DOJ insisted that it had no way into this phone without Apple's help:
If you can't read that, it's from the appeal, and it directly claims that the government "has explored the possibility of using third-party technologies" but says that it can't do so safely. That's difficult to believe in the wake of the DOJ's claims that it successfully got into Syed Farook's much more secure iPhone.
And yet... the NY case moves forward, with the DOJ making a new filing today giving Apple more time to respond to the government's application. It is, of course, possible, that the DOJ will eventually drop this case as well, but its argument that it absolutely needs Apple's help here seems to be yet another misleading, or simply false, statement from the Justice Department.
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Then, earlier this month, Orenstein wrote a pretty thorough dismantling of the Justice Department's position over the All Writs Act. The DOJ then appealed that ruling, which is now sitting in front of a non-magistrate judge, Margo Brodie. Part of the DOJ's argument made in the appeal was that this case is very different from the San Bernardino case, because in this case the phone is using iOS 7, which means that Apple already has the key to get in, and it doesn't require any further "burden" in terms of writing new code. As we noted at the time, this seemed to make the DOJ's case a little stronger.
However, now that the FBI has broken into the iOS 9 device (even if it claims the hack only works on some phones), it seems to argue in the exact other direction. Getting into an iOS 7 device is comparatively quite easy according to a bunch of folks. Apple really only ratcheted up the security in iOS with default encryption in iOS 8 -- meaning that any decent forensics team should be able to get into the iOS 7 device without much difficulty. Remember, a key part of the (somewhat made up) test that the DOJ insists must be used in All Writs Act cases like this is whether or not the third party's help is "necessary."
And in this case, the DOJ insisted that it had no way into this phone without Apple's help:
If you can't read that, it's from the appeal, and it directly claims that the government "has explored the possibility of using third-party technologies" but says that it can't do so safely. That's difficult to believe in the wake of the DOJ's claims that it successfully got into Syed Farook's much more secure iPhone. And yet... the NY case moves forward, with the DOJ making a new filing today giving Apple more time to respond to the government's application. It is, of course, possible, that the DOJ will eventually drop this case as well, but its argument that it absolutely needs Apple's help here seems to be yet another misleading, or simply false, statement from the Justice Department.
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