Apple's Middle Finger to Big Brother

23 September 2014
Published in

By Seema Iyer, Esq.

September 23, 2014

Apple recently released a new phone, a new operating system, and a new privacy policy. Apple also gave us one more thing that no one has seemed to notice: A whole new way to tell the government to stick their subpoena where the sun don’t shine. 

Apple's updated privacy policy is part of its new operating system, iO8, which provides more security because of deeper encryption.  With the new system, no one, not even Apple, can get into the device.  The only one with access is you – the user with the password.  What this means to the legal system is game-changing.  The next time Apple gets a court order to produce data contained on a device it simply cannot comply. 

The convergence of law and technology always makes interesting bedfellows.

To be clear, some of the data on your iphone is on the device itself and some is in the iCloud.  And yes, actor Jason Segel was right when he exclaimed in the recent film "Sex Tape – “no one understands the cloud!”  But thankfully Apple has now made it easier to adjust settings to prevent data from going into the iCloud.  (Sorry folks, less naked celeb pics but at least your sex tapes are more secure). Because Apple has the capability to recover data from the iCloud it will still have to turn over that information when legally requested…….unless you use your user friendly blockage setting…..hint hint.

Apple may have set out to please customers or respond to privacy groups in the wake of the Edward Snowden disclosures; either way, the population getting the greatest benefit from Apple’s lockdown are criminal suspects.  Since they never get the benefit of anything this is certainly a nice change for them.

In June, the U.S. Supreme Court ruled in Riley v. California that police now needed a search warrant to retrieve data from a cell phone, unless it’s an emergency.  That was big.  This Apple situation is - HUGE.

Even with a valid search warrant, which requires probable cause and a Judge’s signature, law enforcement cannot get into the device.  The act of giving the passcode requires speaking – that is a statement.  That statement by an accused (or even a party to a civil action) is protected by the Fifth Amendment’s right against self-incrimination; you know, Miranda, “you have the right to remain silent…..anything you say can and will be used against you in a court of law” - that thing tv cops say while pounding on suspects.

Fortunately Courts have had to examine similar issues recently, which will provide guidance for Judges.  The first case of this kind, in 2009, addressed whether a person could be forced to give up his/her “passphrase”.  In re Boucher, a federal criminal case in Vermont, began with Boucher crossing the border from Canada to Vermont when he allowed his laptop to be inspected.  Immigration officers saw child pornography on it which led to his arrest.  Soon after when law enforcement was trying to search the laptop more thoroughly they could not access the “Z” drive.  The Magistrate Judge quashed a grand jury subpoena to provide the passphrase, saying it would constitute self-incrimination.  The government appeals that decision and the District Judge finds that because Boucher initially showed the Immigration officers at the border contents of the “Z” drive, the government already knew about it and its contents added little to the case, Boucher was ordered to provide the passphrase.

A more likely scenario is depicted in a federal criminal case from Michigan in 2010, United States v. Kirschner, where the prosecutors tried to use a grand jury subpoena to uncover the contents of an encrypted file from the defendant’s hard drive.  The Judge decided that compelling Kirschner to disclose the password would require him to produce “testimony” that would violate his Fifth Amendment right against self-incrimination. 

So either the accused is required to give the passcode or not; it depends on the facts, the evidence the government already has, and the level of cooperation.  Another option to get the passcode is to give a suspect immunity.  Meaning, ‘give us the password, we won’t hold it against you in court, we won’t use it show guilt and, in fact, we will give you a better offer (plea bargain)’. 

These choices are all fine and dandy until it’s an emergency.  Then what?  Roll with this - you, the cop, is faced with immediate danger to a victim; you respond to a tip, find a man matching a photo but he is alone.  His partner in crime is holding a young girl hostage somewhere.  You need to get to her.  The location where she’s being held is in a text message.  The phone locks.

This guy is not giving the passcode.  You hold a gun to his head, he gives the passcode, you get to the location, save the girl and…….all the evidence gets suppressed.  Point of fact, the case against both the perps will probably be dismissed.  You cannot threaten someone’s life to get them to say something, then use that statement against them.  You just can’t.    

It is often surprising how few bright line rules there are in the law.  You can argue either side.  You can win or lose.  And while the dusty ol’ U.S. Constitution may not be a bright, shiny red Apple, it certainly wins out.  Every.  Time.

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Seema Iyer is a criminal defense & civil rights attorney with her own lawfirm in NYC.  Seema appears frequently on MSNBC, HLN, FOX and CNN as a legal analyst. Follow her on Twitter @seemaiyeresq