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federal government’s requested court order to compel Apple to unlock one of its customers’ devices would not only be “substantially burdensome,” in many cases it would also be technically impossible.
Apple said that it would not be able to decrypt data on 90 percent of its devices running iOS 8 or higher, according to a brief filed Monday with Magistrate Judge James Orenstein for the Eastern District of New York. The brief was filed in response to the efforts by the U.S. Department of Justice to seek a court order compelling Apple to unlock an iPhone seized in connection with an investigation.
Last year, Apple announced that devices running iOS 8 or higher would be encrypted by default. That means that only device owners possess the passcodes needed to unlock their iPhones or other Apple devices.
‘Substantially Burdensome’ and ‘Impossible’
“In most cases now and in the future, the government’s requested order would be substantially burdensome, as it would be impossible to perform,” Apple stated in its brief. “For devices running iOS 8 or higher, Apple would not have the technical ability to do what the government requests — take possession of a password protected device from the government and extract unencrypted user data from that device for the government.”
Noting that the iPhone under investigation by the Justice Department runs an earlier version of Apple’s operating system — iOS 7 — Apple stated that it does have the technical ability to extract “certain categories of unencrypted data” from such a device even if it is locked by a passcode. However, being compelled to do so would threaten to harm the company’s reputation, the company said.
“Forcing Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand,” the brief stated. “This reputational harm could have a longer term economic impact beyond the mere cost of performing the single extraction at issue.”
‘Encryption an Important Tool’
Many technology company executives and security experts have made arguments similar to Apple’s as federal officials like FBI Director James Comey and others have pressed for backdoor access to encrypted data to assist with criminal and terrorism-related investigations. Creating a government-only bypass toencryption would also open up data to malicious actors, and would also damage the competitiveness of U.S. technology companies in the global marketplace, according to the executives.
In the current case involving Apple, several organizations — including the American Civil Liberties Union (ACLU), the Electronic Frontier Foundation and the Stanford Center for Internet and Society — filed an amicus brief in support of the company.
“This is an extraordinary and unjustified attempt to compel a third party not accused of wrongdoing to assist the government in obtaining information that the third party neither possesses nor controls,” the organizations stated in their brief. “Regardless of whether Apple has the technical ability to provide the assistance requested here, compelling Apple to do so would be unlawful.”
The judge didn’t allow the ACLU and the other organizations to participate in the Apple case as friends of the court, but he did ask Apple to give more of an explanation for why it shouldn’t be compelled to provide the Justice Department access to its devices.
What the government is seeking is a sweeping new investigative power — “under which anyone who provides a secure device could potentially be conscripted by the government to break the security of that product,” ACLU staff attorney Esha Bhandari and ACLU staff member Eliza Sweren-Becker said Monday in a blog post. “Encryption is an important tool, not only for human rights activists and journalists, but for anyone with personal information such as health and financial records to protect. That’s why it’s essential to push back against government efforts that would undermine our access to encryption and secure technologies.”