Apple Fights Order to Unlock San Bernardino Gunman’s iPhone

Apple Fights Order to Unlock San Bernardino Gunman’s iPhone

Timothy D. Cook, the chief executive of Apple, released a letter to customers several hours after a California judge ordered the company to unlock an iPhone used by one of the shooters in a recent attack that killed 14 people in San Bernardino. 

 Last month, some of President Obama’s top intelligence advisers met in Silicon Valley with Apple’s chief, Timothy D. Cook, and other technology leaders in what seemed to be a public rapprochement in their long-running dispute over the encryption safeguards built into their devices.

But behind the scenes, relations were tense, as lawyers for the Obama administration and Apple held closely guarded discussions for over two months about one particularly urgent case: The F.B.I. wanted Apple to help “unlock” an iPhone used by one of the two attackers who killed 14 people in San Bernardino, Calif., in December, but Apple was resisting.

When the talks collapsed, a federal magistrate judge, at the Justice Department’s request, ordered Apple to bypass security functions on the phone. The order set off a furious public battle on Wednesday between the Obama administration and one of the world’s most valuable companies in a dispute with far-reaching legal implications.

“This Apple case really goes right to the heart of the encryption issue,” said Ira Rubinstein, a senior fellow at the New York University Information Law Institute, “and in some ways, this was a fight that was inevitable.”

This is not the first time a technology company has been ordered to effectively decrypt its own product. But industry experts say it is the most significant because of Apple’s global profile, the invasive steps it says are being demanded and the brutality of the San Bernardino attacks.

Law enforcement officials who support the F.B.I.’s position said that the impasse with Apple provided an ideal test case to move from an abstract debate over the balance between national security and privacy to a concrete one.

The F.B.I. has been unable to get into the phone used by Syed Rizwan Farook, who was killed by the police along with his wife after they attacked Mr. Farook’s co-workers at a holiday gathering. Reynaldo Tariche, an F.B.I. agent on Long Island, said, “The worst-case scenario has come true.”

Mr. Tariche, who is president of the agents’ association, added, “As more of these devices come to market, this touches all aspects of the cases that we’re working on.”

Magistrate Judge Sheri Pym of the Federal District Court for the District of Central California issued her order Tuesday afternoon, after the F.B.I. said it had been unable to get access to the data on its own and needed Apple’s technical assistance.

Mr. Cook, the chief executive at Apple, responded Wednesday morning with a blistering, 1,100-word letter to Apple customers, warning of the “chilling” breach of privacy posed by the government’s demands. He maintained that the order would effectively require it to create a “backdoor” to get around its own safeguards, and Apple vowed to appeal the ruling by next week.

“The same engineers who built strong encryption into the iPhone to protect our users would, ironically, be ordered to weaken those protections and make our users less safe,” Mr. Cook said.

Apple argues that the software the F.B.I. wants it to create does not exist. But technologists say the company can do it.

Mr. Cook’s angry tone reflected the tense discussions, conducted mostly on the telephone, between his company and the government’s lawyers over the San Bernardino case. Apple executives had hoped to resolve the impasse without having to rewrite their own encryption software. They were frustrated that the Justice Department had aired its demand in public, according to an industry executive with knowledge of the case, who spoke on the condition of anonymity about internal discussions.

The Justice Department and the F.B.I. have the White House’s “full support,” the spokesman, Josh Earnest, said on Wednesday.

His vote of confidence was significant because James Comey, the F.B.I. director, has at times been at odds with the White House over his aggressive advocacy of tougher decryption requirements on technology companies. While Mr. Obama’s national security team was sympathetic to Mr. Comey’s position, others at the White House viewed legislation as potentially perilous. Late last year, Mr. Obama refused to back any legislation requiring decryption, leaving a court fight likely.

The Justice Department showed no sign of backing down Wednesday.

“It is unfortunate,” the department said in a statement, “that Apple continues to refuse to assist the department in obtaining access to the phone of one of the terrorists involved in a major terror attack on U.S. soil.”

The dispute could initiate legislation in Congress, with Republicans and Democrats alike criticizing Apple’s stance on Wednesday and calling for tougher decryption requirements. Donald J. Trump, the Republican presidential contender, also attacked Apple on Fox News, asking, “Who do they think they are?”

Apple and other technology companies say that creating an opening in their products for government investigators would also create a vulnerability that Chinese, Iranian, Russian or North Korean hackers could exploit.

But Apple had many defenders of its own among privacy and consumer advocates, who praised Mr. Cook for standing up to what they saw as government overreach.

Many of the company’s defenders argued that the types of government surveillance operations exposed in 2013 by Edward J. Snowden, the former National Security Agency contractor, have prompted technology companies to build tougher encryption safeguards in their products because of the privacy demands of their customers.

“Apple deserves praise for standing up for its right to offer secure devices to all of its customers,” said Alex Abdo, staff lawyer for the American Civil Liberty Union’s privacy and technology section.

Privacy advocates and others said they worried that if the F.B.I. succeeded in getting access to the software overriding Apple’s encryption, it would create easy access for the government in many future investigations.

“This is not the last step in the journey,” said Robert Cattanach, a former Justice Department lawyer who works on privacy and tech security issues at the law firm Dorsey & Whitney. “The next thing you know, they’ll be in the back door of these systems.”

The Apple order is a flash point in a dispute that has been building for more than a decade.

The F.B.I. began sounding alarms years ago about technology that allowed people to exchange private messages protected by encryption so strong that government agents could not break it. In fall 2010, at the behest of Robert S. Mueller III, the F.B.I. director, the Obama administration began work on a law that required technology companies to provide unencrypted data to the government.

Lawyers at the F.B.I., Justice Department and Commerce Department drafted bills around the idea that technology companies in the Internet age should be bound by the same rules as phone companies, which were forced during the Clinton administration to build digital networks that government agents could tap.

The draft legislation would have covered app developers like WhatsApp and large companies like Google and Apple, according to current and former officials involved in the process.

There is no debate that, when armed with a court order, the government can get text messages and other data stored in plain text. Far less certain was whether the government could use a court order to force a company to write software or redesign its system to decode encrypted data. A federal law would make that authority clear, they said.

But the disclosures of government surveillance by Mr. Snowden changed the privacy debate, and the Obama administration decided not to move on the proposed legislation. It has not been revived.

The legal issues raised by the judge’s order are complicated. They involve statutory interpretation, rather than constitutional rights, and they could end up before the Supreme Court.

As Apple noted, the F.B.I., instead of asking Congress to pass legislation resolving the encryption fight, has proposed what appears to be a novel reading of the All Writs Act of 1789.

The law lets judges “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.”

The government says the law gives broad latitude to judges to require “third parties” to execute court orders. It has cited a 1977 ruling requiring phone companies to help set up a pen register, a device that records all numbers called from a particular phone line.

Apple argues that the scope of the act has strict limits. In 2005, a federal magistrate judge rejected the argument that the law could be used to compel a telecommunications provider to allow real-time tracking of a cellphone without a search warrant.


Professionalism as usual in Stanislaus County…….

Judge extends restraining order against Patterson councilwoman for two years

A restraining order that requires Patterson Councilwoman Sheree Lustgarten to stay away from a fellow council member was extended, though she can attend council meetings.

Stanislaus Superior Court Judge John Freeland granted a two-year extension on a restraining order that requires Patterson Councilwoman Sheree Lustgarten to stay away from Councilman Dennis McCord.

The court decision at a Tuesday morning hearing in Modesto requires Lustgarten to stay 100 yards away from McCord until Feb. 24, 2018. The exception is Patterson City Council meetings, where Lustgarten sits right next to McCord at the dais.

Lustgarten may attend council meetings, but Freeland suggested that the city change the seating arrangement. “I don’t understand why the city has them sitting next to (each other) at the dais,” he said. “It makes no sense.”

Freeland took no action on the city’s charge that Lustgarten committed perjury when she previously told the court she has no criminal record. A city search of Southern California court records found a misdemeanor conviction and infraction related to a domestic dispute, but Freeland never mentioned the convictions during Tuesday’s proceeding.

The judge approved a five-month restraining order in September, based on what Lustgarten said and did while clashing with city officials over an investigation into her conduct at Patterson’s senior center. After a July 10 closed council session on the investigation’s report, officials heard Lustgarten say that if McCord leaked the report, “he’s dead.”

Lustgarten also left angry and profane phone messages with city officials in July. The council majority urged her to resign and she was stripped of committee appointments.

In January, the city sought to extend the workplace restraining order after dredging up the court records in Southern California, where Lustgarten previously lived.

The City Council denied a request to cover Lustgarten’s legal fees, and last week the city submitted fresh charges claiming she tried to intimidate and harass McCord within weeks of the Sept. 24 order.

According to the brief filed last week, Lustgarten shuffled and flapped papers as she sat next to McCord at the Oct. 6 council meeting. McCord looked over and saw that Lustgarten was showing him court documents from a criminal case in Montana related to his father’s death, the brief says. McCord’s father was slain.

According to the city’s brief, Lustgarten obtained court documents concerning McCord’s mother, who had been convicted of conspiracy in his father’s death, and brought them to the council meeting to cause “emotional and psychological harm” to McCord.

The city also claimed that Lustgarten violated the restraining order when she parked her car less than 100 yards from McCord, who attended an Oct. 10 event in downtown Patterson where people who want to recall Lustgarten gathered signatures.

A sheriff’s deputy who responded asked Lustgarten three times to obey the restraining order before she left, the city claimed. McCord’s teenage sons also told their father that they saw the councilwoman parked at a street corner less than 100 yards from the family’s home in mid-October.

Lustgarten represented herself in court Tuesday, and she was given time to organize papers she planned to submit. Freeland said he could approve the extension without hashing over the latest evidence, as restraining orders usually are granted for three years.

When Lustgarten said a workplace restraining order hurts her ability to find a job, the judge cut her off. She was ordered to have no contact with McCord at his work and home or through the phone, email or text messages.

Lustgarten said she needs employment to support herself after her husband’s death by suicide in December. After Tuesday’s hearing, she denied showing the Montana court papers to McCord at the Oct. 6 council meeting.

City Attorney Tom Hallinan said he was pleased the order was extended. He said he will tell the council about Freeland’s concerns regarding council member seating.

Lustgarten, who was in court with a few supporters, said the city’s legal actions against her are politically motivated and retribution for her efforts to expose corruption and financial mismanagement at City Hall. Combined with the senior center investigation, she claimed, the city’s legal actions have cost taxpayers more than $100,000.

She said she plans to finish her term this year and is open to running for re-election in November. “They have given me a big platform by spending a lot of money on this,” Lustgarten said.

The city has suggested to the state attorney general that the convictions on Lustgarten’s record disqualify her from office. A 1998 battery on a spouse charge in San Bernardino County was reduced to a “fighting noise; offensive words” infraction, requiring her to a pay a $25 fine, and she has a misdemeanor conviction for passing a bad check in Riverside County.

Lustgarten said both cases were related to being a victim of domestic abuse at the hands of a previous husband 18 years ago. She brought photos of the physical abuse to Tuesday’s hearing.

“I found out about the bad check when I was in hiding, and I paid it,” she said. “They were trying to get me on a perjury charge for things that happened 18 years ago.”

They are so childish they cannot even sit next to each other in city meetings. SMH