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Judge: Order to Compel Apple Has Been 'Unenforceable' All Along
MotherBoard ^
| March 23, 2016
| by SARAH JEONG
Posted on 03/24/2016 11:20:34 AM PDT by Swordmaker
On Monday, less than 24 hours before the hearing was scheduled to start, the US government asked to cancel its big court date in the Apple vs FBI fight. The judge convened a quick conference with the Department of Justice and Apple attorneys. A transcript shows the judge repeatedly emphasizing that the order to compel Apple to create a backdoor for the government is unenforceable and has been so since the court battle began weeks ago.
The March 22 hearing was set to be an all-out battle. Both sides planned to call witnesses, with one to two hours of live testimony expected in court. Lawyers for Apple said that the judge had set aside four to five hours total for the hearing. The court was clearly braced for a storm of media attention, with three overflow rooms set aside for spectators (a total of 324 seats, including the main courtroom), and with a special court order announcing a first-come, first-serve ticketing system (starting at 7 AM) reminiscent of Supreme Court practices, along with an advisory that the security line could only process 50 people per hour.
But all this preparation was for naught, when the government moved for a continuance at the very last minute. Prosecutors said that an outside party (now thought to be an Israeli forensics firm) had demonstrated to the FBI a possible method for unlocking Farooks iPhone.
Its hard to tell how the hearing-that-never-was would have actually gone. But on Tuesday, Cryptome published the transcript to the conference that happened right before the judge granted the governments request to cancel the hearing. It shows the judge pushing backgentlyagainst the government, while the government backpedaled on the aggressive stance it had taken against Apple in its filings.
Screenshot from the transcript.
On February 16, Magistrate Judge Sheri Pym issued an order to compel Apple to assist the FBI in searching a work-issued iPhone belonging to Syed Rizwan Farook, the suspected shooter in the December 2015 San Bernardino attack. In order to access the contents of the phone, the FBI asked Apple for custom software that would disable certain security mechanisms, allowing the agency to brute-force the password. Apple has been fighting that court order. The company and the Department of Justice were set to argue their positions in court on March 22.
Apples lawyers called into the March 21 conference, agreeing to the governments request to cancel the hearing. But they also asked the judge to vacate the February 16 order. The order had been premised on the governments claim that Apple was the only party that could help them access the phonenow that the DOJ had turned up this outside party, the order was invalid. The DOJ disagreed, saying that since the Justice Department wasnt sure whether the method would work, it would be premature.
While the judge sided with DOJ and left her February 16 order in place, she emphasized that the order that was entered is unenforceable and is stayed. The judge said that she was struggling to see the difference between vacating the February 16 order and leaving it in place, since the order had no legal effect for the time being.
On March 1, in a hearing before the House Judiciary Committee, Rep. Trey Gowdy (R-SC) blasted Apple for flouting the law, by not complying with Magistrate Judge Pyms order. The judges own remarkswhile not directed at Gowdyserve to rebutt him.
I certainly don't think, let me just comment, that Apple's been flouting the order, said Magistrate Judge Pym in the meeting on March 21. The order, essentiallyit isn'tpending a final decision, there's not reallyit's not in a stage that it could be enforced at this point.
The transcript also shows prosecutors backpedaling on some of the more hostile things theyve said about Apple, claiming that they are not saying anything nefarious about Apple.
Theodore Boutrous, one of the lawyers for Apple on this case, responded by quoting the governments own filings back to them. Just on page 2 of their reply and opposition brief they declare, Apple's rhetoric is not only false, but is corrosive of the very institutions that are best able to safeguard our liberty and our rights.
Screenshot from the transcript.
While the DOJ canceled the court date ostensibly because an outside party had demonstrated a forensic technique at the last minute, the timing is still suspicious. The most likely forensic technique is one that experts have been discussing for weeksin fact, Rep. Darrell Issa (R-CA) even mentioned it to FBI Director James Comey in the House Judiciary Committee hearing on March 1.
Is the government retreating from the San Bernardino iPhone fight because its lawyers think the judge is likely to rule against them? Its possible. After a flood of amicus briefs and unprecedented media attention on a magisterial proceeding, Judge Pym might be having second thoughts about the order she issued on February 16. If the hearing had gone poorly for the government, the DOJ would have lost face on a national stage. But the DOJ hasnt fully backed out yet, and it still has an appeal in a similar case pending on the East Coast.
The government is due to file a status report in the San Bernardino case in two weeks, on April 5. At that point, the initial order to compel Apple might be vacated, and the iPhone backdoor fightat least on this frontwill be over.
TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events
KEYWORDS: apple; applefbi; applepinglist; applespin; courtorder; fbi; fuapple; privacy
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To: Swordmaker
The government NEVER had a case...and they knew it. The bottom line is that they “blinked” when filing for their “postponement.
To: House Atreides
I thought I read somewhere recently that there was a private party helping to show the government how to do this and that was the reason (speculation) why they were backing down on forcing Apple to do this. Anyone else see the same thing?
3
posted on
03/24/2016 11:26:35 AM PDT
by
MNGal
To: dayglored; ShadowAce; ThunderSleeps; ~Kim4VRWC's~; 1234; Abundy; Action-America; acoulterfan; ...
Magistrate judge Sheri Pym says in transcript of hearing about delaying the hearing that she thought her order to compel Apple to open the iPhone was "unenforceable all along." If so, why did she issue the order? PING! pinging dayglored, Shadow Ace, ThunderSleeps for their ping list because of "WHAT THE HELL?"
Judge says "Order to Compel
Apple was unenforceable all along"
Ping!
The latest Apple/Mac/iOS Pings can be found by searching Keyword "ApplePingList" on FreeRepublic's Search.
If you want on or off the Mac Ping List, Freepmail me
4
posted on
03/24/2016 11:27:01 AM PDT
by
Swordmaker
(This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
To: House Atreides
The government was humiliated in defeat . That is why they ran out the lie that they could crack the encryption on their own.
5
posted on
03/24/2016 11:27:02 AM PDT
by
WENDLE
(https://www.youtube.com/watch?v=lgIhGgrhQeE)
To: Swordmaker
Bottom line - they were eyeball to eyeball and the government blinked.
To: MNGal
7
posted on
03/24/2016 11:28:58 AM PDT
by
MNGal
To: Swordmaker
Unenforceable??? Then why did the judge permit this mental masturbation to continue?
8
posted on
03/24/2016 11:31:51 AM PDT
by
Cyman
To: MNGal
I thought I read somewhere recently that there was a private party helping to show the government how to do this and that was the reason (speculation) why they were backing down on forcing Apple to do this. Anyone else see the same thing? Yup, an Israeli company, Cellebrite, has supposedly suggested a way to do it . . . but it is experimental. It apparently requires lots of very expensive equipment and will only work on iPhones with A6 or older processors. . . so people with A7 processors equipped with the Secure Element won't be effected, only those with an A6 and the Encryption Engine approach to security will be vulnerable to a very expensive one-off at a time method of breaking in need worry. If it works. The FBI says they are not sure it will work.
9
posted on
03/24/2016 11:32:31 AM PDT
by
Swordmaker
(This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
To: Cyman
Unenforceable??? Then why did the judge permit this mental masturbation to continue? People are reading too much into the judge's comment. The original order was signed by a Magistrate (a kind of "junior judge"). Apple (as was its right) appealed the Magistrate's ruling to the District Judge. What the judge said was that, since the order was on appeal, it couldn't be enforced until that appeal was decided. He didn't say that it was never valid.
To: Swordmaker
The government never had the right to try to force Apple to do this.
11
posted on
03/24/2016 11:49:40 AM PDT
by
I want the USA back
(The further a society drifts from the truth, the more it will hate those who speak it. Orwell.)
To: Swordmaker
Trump will be disappointed.
12
posted on
03/24/2016 11:50:15 AM PDT
by
TalonDJ
To: MNGal
I read that same article.
At this point, I'm not as sure as others on this thread that the Government "blinked" and lost.
I think it's entirely possible that the Israeli firm managed to "crack" the phone and give the Feds the data it wanted from the phone.
That would negate the primary reason for the judge's order which all along was the Government stating they "owed it to the families" to tell them whether or not they'd caught everyone responsible for killing their loved ones. Then there's the fact that the Federal Government really didn't like having an encryption scheme that they couldn't break.
Then there's always the possibility that the third-party Israeli firm managed to create a tool to reset the password counter in iOS which would then enable the Federal Government to unlock ANY phone at ANY time.
That would also in effect give the Federal Government what it wanted and negate the reason for the lawsuit.
So this could all be a ruse at this point designed to distract the public into thinking "Apple won" when in fact it may not have.
Yes, I'm that skeptical.
13
posted on
03/24/2016 11:54:27 AM PDT
by
usconservative
(When The Ballot Box No Longer Counts, The Ammunition Box Does. (What's In Your Ammo Box?))
To: Lurking Libertarian
People are reading too much into the judge's comment. The original order was signed by a Magistrate (a kind of "junior judge"). Apple (as was its right) appealed the Magistrate's ruling to the District Judge. What the judge said was that, since the order was on appeal, it couldn't be enforced until that appeal was decided. He didn't say that it was never valid. Magistrate Sheri Pym is the judge who would be hearing the case, and the Magistrate Judge who signed the agreement. I agree with what you said, though.
14
posted on
03/24/2016 12:11:26 PM PDT
by
Swordmaker
(This tag line is a Microsoft insult free zone... but if the insults to Mac users continue..)
To: usconservative
“So this could all be a ruse at this point designed to distract the public into thinking “Apple won” when in fact it may not have.”
Apple did win! And not only did it win on the legal merits, but it’s going to win in the marketplace now that everyone who has an A6 processor equipped iPhone will upgrade to the newer iPhones with the A7 chip and the better incryption scheme. Furthermore, Apple will know whether or not their phone was backdoored, and will go to work on further strengthening of their encryption protocols. We would not be here today if our Immigration Laws had been faithfuilly executed and this woman terrorist kept from entering our country. Trump is right, no Muslims into our country for the forseeable future. NONE of them are coming here for anything but to wage jihad on us all. Europe had better get off it’s ass and start wholesale deportations of their muslim population before there’s noting left of their countries! If we had a government that looked after us, we’d be doing the same thing. Take a look at Dearborn, Michigan (HQ of the Ford Motor Company) now a Muslim/Sharia-run city. Do you want to live under those conditions?
15
posted on
03/24/2016 12:20:34 PM PDT
by
vette6387
(Obama can go to hell!)
To: Lurking Libertarian
People are reading too much into the judge's comment. The original order was signed by a Magistrate (a kind of "junior judge"). Apple (as was its right) appealed the Magistrate's ruling to the District Judge. What the judge said was that, since the order was on appeal, it couldn't be enforced until that appeal was decided. He didn't say that it was never valid.
Just so. Exactly right. Until/unless appeals are exhausted, there is no foul on Apple's part.
16
posted on
03/24/2016 12:32:36 PM PDT
by
zeugma
(Vote Cruz!)
To: Swordmaker
From what I've been reading about the potential to hack the phone so far, it would seem that if you care about your phone's privacy, you're better off upgrading to a 6 or better.
Something else that might be useful is software on the phone that you could set it up so that if x amount of time has passed without that software being accessed, that the phone would be wiped to factory settings.
17
posted on
03/24/2016 12:40:46 PM PDT
by
zeugma
(Vote Cruz!)
To: Cyman
"unenforceable
at this point"
The order asked for input from Apple and, specifically, the 'burden' had not been determined.
18
posted on
03/24/2016 12:48:30 PM PDT
by
mrsmith
(Dumb sluts: Lifeblood of the Media, Backbone of the Democrat/RINO Party!)
To: Swordmaker
Unenforceable? How about unnecessary?
DOJ Knew of Possible iPhone-cracking Method Before Apple Case
The iPhone in question is Model a1549 which is an iPhone 6, I believe.
"...We have engaged all parts of the U.S. government to find a way to access the device without Apples help, FBI Director James Comey told lawmakers in early March. If we could have done this quietly and privately, we would have done it.
Yet they wonder why no one believes them.
I wonder who made the decision to turn this particular phone into a political issue?
To: TalonDJ
A lot of people who care about stopping terror networks in the US will be disappointed...including Trump.
20
posted on
03/25/2016 5:24:17 AM PDT
by
mac_truck
(aide toi et dieu t'aiderai)
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