Battle between FBI & Apple over cell phone encryption may play role in Baton Rouge murder investigation

Source: The Advocate

Cell Phone Encryption Battle

Baton Rouge law enforcement officials are closely watching the outcome of a legal battle between Apple and the FBI over access to a terrorist’s encrypted iPhone, hoping it will eventually mean a breakthrough in the months-old shooting death of a pregnant Baton Rouge woman and her unborn son.

Apple, citing its rights under the U.S. Constitution, refused Thursday to comply with a federal court order it received to help the FBI break into an encrypted iPhone found during a December terrorist attack in California.

The FBI said in its court filings that the technology Apple has been ordered to create would be used to open only one phone — the encrypted iPhone used by Syed Rizwan Farook, who with his wife, Tashfeen Malik, killed 14 people and seriously wounded more than 20 others at a holiday party in San Bernardino.

Critics, including Apple, argue the court order could become a precedent to use the technology to unlock other cellphones and worry it could lead to the unauthorized use of the software by hackers. Creating such a back door to open encrypted phones also would cause a breakdown in the standard of privacy and data protection citizens have come to expect when using their smartphones, Apple has said.

This is a battle that could end up waged on many fronts, with a New York federal magistrate judge on Monday ruling in Apple’s favor in a criminal case there, although the level of encryption involved appears to be different. But the judges are considering the same law that the federal government believes can be used to force the company to crack open phones. The unsolved shooting death of a Baton Rouge woman and her unborn son has served as an example of what impenetrable privacy may cost. Eight months pregnant, Brittney Mills, 29, was fatally shot April 24 at her Ship Drive apartment. Authorities believe Mills opened her apartment door for someone who wanted to use her car and was shot when she refused. Doctors delivered her son, Brenton Mills, who died several days later.

The investigation into her death is stalled, detectives have said, but they believe their best chance for finding a fresh lead is gaining access to Mills’ iPhone. But her cellphone uses iOS8 software that blocks entry to anyone without her passcode, and no one has the code. The cellphone’s contents will become permanently inaccessible if multiple incorrect guesses are entered, meaning photos, text messages, voicemail, email, contacts, call history, iTunes material and notes would be lost.

East Baton Rouge Parish District Attorney Hillar C. Moore III went to Washington, D.C., in early February to talk to members of Congress and other law enforcement officials about the dilemma.

Moore said he is optimistic the FBI will win the San Bernardino case, and if so, he expects it will mean Apple will have to provide assistance in unlocking encrypted phones to law enforcement who are armed with a judge-signed search warrant, including in cases of homicides or any other crime.

Though Moore said he has no plans to file a suit against Apple, citing a lack of resources to launch such a fight, he has reached out to the FBI and is closely monitoring the court case surrounding the San Bernardino shooting.

Peter Thomson, a New Orleans lawyer who has worked with the National Security Agency and the Department of Justice, agrees with Moore that if Apple loses, the decision would likely mean the company also will have to assist law enforcement in opening other phones.

Because the San Bernardino shooting has been labeled a terrorist attack, some say if the FBI wins, Apple would only have to provide such assistance in national security cases. But Thomson said because law enforcement are investigating the California case as a domestic civilian shooting, the case legally aligns with the fatal shooting of Mills.

“(If Apple loses) it would absolutely assist the DA in obtaining Apple’s assistance in the Brittney Mills murder case,” Thomson said.

A federal magistrate in California ordered Apple on Feb. 16 to give the FBI reasonable technical assistance to bypass or disable the auto-erase function, enable the FBI to submit pass codes electronically and ensure software on the phone will not introduce delays between passcode attempts.

Moore’s search warrant requests Mills’ phone be opened and the information inside be turned over to law enforcement.

“We are asking for the same thing” as the FBI, Moore said.

Barbara Mills, Brittney Mills’ mother, said last week the standstill investigation into her daughter’s and grandson’s murders has left her and the rest of the Mills family without closure.

“(Apple is) saying they’re protecting clients and the public and whatnot, but these same people — the victims — they were Apple users,” Barbara Mills said. “Our children are being killed, and the murderers are still walking around loose because (Apple) won’t assist law enforcement.”

Supporters of encryption say it prevents crime, specifically hacking, and protects personal property. Apple and others in the tech industry say encryption technology restores the trust they had with international companies that was damaged after Edward Snowden leaked that the NSA was vacuuming up Internet data and information from the several billion phone calls Americans made each day.

Greg Norcie, staff technologist at the Center for Democracy and Technology, said he does not believe Apple should be forced to comply with the FBI’s request.

Norcie said that if Apple is forced to create the software, the technology could fall into the hands of a hacker or a foreign government and threaten national security.

“That could be a problem if someone who wants to harm the U.S. can get into these phones, which are sometimes used by people in government or in businesses,” Norcie said. “These phones are used in many different contexts. It might be by someone who works in a hospital, someone working in a nuclear power plant or an oil refinery.”

Norcie also cited privacy concerns for Apple users.

“When someone has this product and they’re able to communicate anonymously, that is so important,” Norcie said. “You can’t really speak freely if people can listen to you.”

Apple contends the government does not have the right to ask it to create the software.

“No court has ever authorized what the government now seeks, no law supports such unlimited and sweeping use of the judicial process, and the Constitution forbids it,” Apple’s lawyers wrote in the company’s motion to vacate the order and filed Thursday.

“The government’s request here creates an unprecedented burden on Apple and violates Apple’s First Amendment rights against compelled speech,” Apple wrote in the motion.

According to the motion, the government’s request would require Apple to dedicate six to 10 employees to the task and would likely take up to four weeks to complete.

While the government could hire an expert to try to crack Apple’s encryption technology, this route would be impractical, if not impossible, said Jonathan Rajewski, associate professor of digital forensics at Champlain College in Vermont.

“You need more computers than there are blades in the grass to do this, the way Apple secures its system,” Rajewski said.

Mills’ mother said she is angry that Apple is refusing to comply with last week’s court order.

“If I refused to do what the judge told me to do, I’d be in contempt of court and locked up,” she said.

Barbara Mills said the police would show up at her door.

“They maybe need to make a visit to Silicon Valley,” she said. “That’s too much power for a business.”

DANIELLE MADDOX KINCHEN

The Law Offices of L. Clayton Burgess
8550 United Plaza Blvd.
Ste. 702
Baton Rouge, LA 70809