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26 February 2016

Can Spies Break Apple Crypto?

Date: Fri, 26 Feb 2016 12:33:23 -0500
From: "Michael Froomkin - U.Miami School of Law" <froomkin[at]>
To: John Young <jya[at]>
Subject: Re: Opinion Requested

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.


A. Michael Froomkin,
Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law
Editor, Jotwell: The Journal of Things We Like (Lots),
Program Chair, We Robot 2016 |+1 (305) 284-4285|
U. Miami School of Law, P.O. Box 248087, Coral Gables, FL 33124 USA
-->It's cool here.<--

On Fri, 26 Feb 2016, John Young wrote:

From Cryptography mail list 26 February 2016

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.