Can Spies Break Apple Crypto?

[Jeffrey Walton <noloader () gmail com>]

Here's an interesting exchange between Cryptome and Michael Froomkin,
Law Professor at University of Miami, on the All Writs Act
(http://cryptome.org/2016/02/can-spies-break-apple-crypto.htm):

-----

A. Michael Froomkin:

The factual posture in the key Supreme Court precedent, New York
Telephone, involved a situation where only the subject of the order
was capable of providing the assistance at issue. This is the basis
for Apple's claim that (to date) the law seems to require that the
government not be able to proceed on its own before an All Writs Act
order should issue. Of course unique ability to help is not listed as
an element in the All Writs Act ... probably because that act is
really about preserving court jurisdiction, not making search warrants
and the like more effective; that last bit is subsequent judicial
gloss if not judicial bending-out-of-shape.

Personally, I think Apple has made a good showing on the 'burdensome'
prong: if Apple's facts hold up, what it is being asked to do is much,
much more work than the Supreme Court approved of requiring in the New
York Telephone case. Deciding the case for Apple on that issue allows
avoiding all the other sticky factual and constitutional issues, so it
could be quite appealing to a judge.

-----

Henry Baker:

"The All Writs Act also requires that the govt prove to the Court that
the 3rd party's efforts are *required* -- i.e., that the govt has
*exhausted* all other means to achieve the desired result. In
particular, that *all* departments of the govt have been consulted,
and *none* of them has the required capabilities.

"Moreover, the government has not made any showing that it sought or
received technical assistance from other federal agencies with
expertise in digital forensics, which assistance might obviate the
need to conscript Apple to create the back door it now seeks."

"Judge Orenstein [was] asking the government 'to make a representation
for purposes of the All Writs Act' as to whether the 'entire
Government', including the 'intelligence community', did or did not
have the capability to decrypt an iPhone, and the government
responding that 'federal prosecutors don't have an obligation to
consult the intelligence community in order to investigate crime'."

If this interpretation of the All Writs Act is upheld, then the DOJ
will have to consult with the intelligence community prior to
compelling companies like Apple to decrypt phones.

It would be quite interesting for DOJ to publicly stipulate that NSA
could (or could not) break into iOS 8 or 9.

This is truly a sticky wicket, since the intelligence community is
generally prohibited from working on domestic issues.
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