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FBI may not need Apple to get to core of phone

The hot legal battle between Apple and the FBI went on simmer this week.

At the FBI's request and the technology company's non-objection, Federal Magistrate Sheri Pym vacated a hearing set for Tuesday, ruling that there is “presently uncertainty surrounding the government's need for Apple's assistance.”

In non-legal speak, the FBI thinks it has a way to get into the iPhone of deceased suspected domestic jihadi Syed Rizwan Farook without Apple's assistance. Farook's alleged San Bernardino shooting spree in December, along with wife Tashfeen Malik, left 14 dead and 22 injured.

If the federal agency can get into the smartphone without Apple's help, it will drop the case. That would give privacy advocates some measure of relief as well as new reasons for concern.

Farook's digital afterlife has been unexpected and contentious and has spilled over into American politics. “I really don't like backing Donald Trump,” Bob Zeidman, president of Software Analysis and Forensic Engineering Corp. and a past Apple consultant, told AMI Newswire.

Zeidman was referring to Republican presidential hopeful Donald Trump's call for a boycott of Apple products if the company continued to resist government orders to help crack the terror suspect's iPhone.

He said he didn't agree with the boycott but thought Apple really ought to drop its objections and help out.
“I think Apple's strategy is backfiring. They should have just done this and not made a big deal about it.”  

The government has tried to compel Apple's help under the All Writs Act, originally passed in 1789. Apple has thrown up a variety of objections.

One of them was a principled objection. A spokesman for Apple pointed AMI to an interview with company CEO Tim Cook, in which he sai, flat out: “We don't think the government has the authority to do this.”

There were practical objections as well: that Apple technically did not have the technology to break an iPhone's encryption, and would have to invent a whole new OS, or operating system, to do so; and that the request would cause an “undue burden” to the company's business.

Zeidman thinks that's not quite right. Yes, he concedes, Apple would have had to put an OS together, technically, but it's not what most people think of as an OS.

“Nobody is going to install Angry Birds on the terrorist's phone,” Zeidman said. He estimates it would take “several engineers two to four weeks” for Apple to make an OS designed to thwart that particular iPhone's encryption technology. For a company with market cap as high as Apple's, that probably would not constitute an “undue burden.”

Zeidman argued that Apple's quiet compliance would actually help bolster digital privacy, by unlocking this phone and no others.

Julian Sanches, a senior fellow at the Cato Institute, thinks that's laughable, especially since the case has already found its way into the courts.

Government “getting access to technical information under the company's control is obviously not unprecedented. Making a company write software and authenticate it with their developer key certainly is,” Sanchez told AMI.

Further, it might be one thing for Apple to quietly cooperate with the government and give advice for how best to hack this particular iPhone. Once it's in the courts, we're in the realm of legal precedents.

“There is no way this can be limited to one particular phone,” Sanchez said. “If there's a legal ruling that the All Writs Act can be used this way, then it can be used this way for thousands of other phones police want help getting into and clearly will.”

Sanchez warned: “The Manhattan DA has 170 iPhones he wants to unlock, and has said outright that if the FBI wins, he expects to get the same kind of order for those.”

Confronted with Sanchez's legal objections, Zeidman admitted to being somewhat stumped, and also worried. “I don't want the government getting my data,” he admitted.

“Other people are going to come to Apple and ask for the same thing. It's going to be hard for Apple to say you can't do it if you lose this case,” he said later. 

The Apple critic would thus find himself among many Americans concerned with privacy from prying eyes who would be relieved if FBI vs. Apple somehow just went away.