Privacy Advocates Signal Victory in Apple, FBI Court Fight Delay
Privacy advocates called DOJ's unexpected request to delay the hearing in U.S. District Court in Riverside, California, (see 1603210011) a victory for Apple, which faced a court order to help the FBI open up a locked iPhone 5c of one of the shooters in the San Bernardino mass shooting. The advocates said if the FBI found a vulnerability that could help open up that phone, it should let Apple know so it could patch the hole.
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"The FBI filing in a bid to delay [Tuesday's] hearing shows that there are alternatives to requiring providers and device manufacturers to make their products insecure," Greg Nojeim, the Center for Democracy and Technology's director of the Freedom, Security and Technology project, told us. "The FBI should disclose whether the mechanism it is testing is one that had been suggested to it before now. Security is hard to get right. The vulnerability that the FBI would exploit is probably one that Apple would want to patch." The development shows "we can have a strong degree of device security and that the FBI has many means of gaining access to information without weakening that security," said Nojeim.
Magistrate Judge Sheri Pym granted the government's request Monday to delay the hearing. DOJ said in a motion it found an "outside party" that said it had a "possible method for unlocking" Syed Rizwan Farook's iPhone. "Testing is required to determine whether it is a viable method that will not compromise data on Farook's iPhone," DOJ said. "If the method is viable, it should eliminate the need for the assistance from Apple ... set forth in the All Writs Act Order in this case." The FBI must report back April 5. In several news reports, Apple said the delay may be temporary. The company had no comment to us.
"This is a victory in a much larger fight," Peter Micek, Access Now global policy and legal counsel, said in an interview Tuesday. "With this postponement, it could be handing another victory in the form of avoiding a harmful precedent in the courts." He said it's a win also for public pressure and public opinion that's shifted to Apple and away from the FBI, which might be "pulling back a bit and maybe recalculating" because it underestimated that opinion.
A survey released Tuesday shows Americans are siding with Apple. A Vrge Analytics survey of 657 people found 42 percent favor Apple's position and 30 percent said the FBI made the more compelling case, the firm said in a news release. Those remaining said they hadn't made up their minds or were unsure. Other findings showed trust in the FBI slightly slipped within the past month regarding the bureau's handling of an individual's personal information, while more people don't want Apple to help the agency unlock the phone. "Taken all together, this data may offer clues into why the FBI is suddenly trying to ratchet down the controversy and avert a court showdown with Apple," said Tom Galvin, partner at Vrge Strategies.
Peter Swire, a Georgia Institute of Technology professor and former White House privacy czar, said in an interview that "the government should pursue its other options before seeking extraordinary relief from Apple." He said the President's Review Group on Intelligence and Communications Technologies that was formed after the surveillance leaks by former NSA contractor Edward Snowden recommended changes to the "equities process" for zero-day exploits, and Michael Daniel, the president's cybersecurity coordinator, later adopted the process in which the government assesses security holes that it finds and then discloses to software vendors to fix. Swire, who was a member of that review group, said that process should apply to known flaws.
TechFreedom President Berin Szoka, who wrote about developments in the case in a blog post Tuesday, told us the cases raises two questions: Does the All Writs Act, which the FBI is using to force Apple to comply with the court order, apply? And is it proper for the bureau to use it? He said the FBI is likely to prevail by appealing a parallel case in which U.S. District Magistrate Judge James Orenstein in New York's Eastern District rejected the government's use of the All Writs Act to force Apple to help the FBI unlock the passcode on an iPhone used in a drug case (see 1603020061). Szoka said that would mean the act would be enforceable and could be used against Apple.