may take months before new requests get handled.
That revelation, first reported by CNET, was gleaned from a search warrant affidavit for a seized iPhone last summer by a federal agent who was investigating a Kentucky man on crack cocaine distribution charges.
The Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) agent, Rob Maynard, said in court documents that he'd "attempted to locate a local, state or federal law enforcement agency with the forensic capabilities to unlock" an iPhone 4S seized during the investigation, but every contacted law enforcement agency said that it "did not have the forensic capability." Apple, meanwhile, told him that the wait time for recovering data from an iPhone -- which the technology firm copied to a USB key then provided to investigators -- was approximately seven weeks, though Maynard ultimately had to wait about four months.
The ATF case highlights that technology companies, including Apple, must comply with court orders to unlock devices they build or sell. But it also revealed that Apple is somehow able to bypass the security controls built into its latest-generation devices. "That is something that I don't think most people realize," Christopher Soghoian, principal technologist with the ACLU's Speech, Privacy and Technology Project, told CNET. "Even if you turn on disk encryption with a password, these firms can and will provide the government with a way to get your data."
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Does court-ordered data retrieval infringe on people's privacy rights? "It's important to note that both cops and legislation tend to trail criminals in the adoption of new technologies," said Nick Selby, a Texas police officer and the CEO of StreetCred Software, which provides fugitive case management software to law enforcement agencies, via email. "It's important to question whether police may be going too far, but it is equally important to consider criminals' use of these technologies to abet, and in some cases actually commit, crimes."
Many judges have granted warrants to law enforcement agencies to retrieve data from -- or that's associated with -- mobile devices or their radio frequency (RF) communications. "Recent rulings encourage law enforcement to better develop their mobile device and RF chops. For example, in U.S. vs. Skinner last August, the U.S. Court of Appeals for the 6th Circuit ruled that police may track the signals emanating from wireless devices like a cellphone owned by a person," Selby said. "The fact that the court found that users do not have a reasonable expectation of privacy in the data given off by a voluntarily procured, pay as-you-go cellphone means that we can expect to see more use cases like these."
Is Apple putting cases at risk by not complying more quickly with court orders? In the ATF investigation, the attorney for the 24-year-old defendant, Mark Edmond Brown, filed a motion to suppress the evidence gathered from the defendant's iPhone, given the delay in retrieving it.
But U.S. district court judge Karen Caldwell wrote in an opinion that the ATF was "placed on a waiting list by the company" -- referring to Apple -- for what had been a court-ordered seizure, meaning it was backed by a warrant. "The court finds nothing in the record to demonstrate any evidence of bad faith or unnecessary delay in procuring assistance from Apple to unlock the phone," she wrote.
In October 2012, Brown -- a convicted felon -- pleaded guilty to possessing firearms, and according to CNET, last month pleaded guilty to a charge of conspiracy to distribute less than five kilograms of crack cocaine.
If Apple didn't unlock iPhones for law enforcement agencies in response to a court order, would police have any other options? Some police forces have been testing smartphone data dump kits to allow investigators to easily retrieve data without having to use an external lab or appeal to a device manufacturer or carrier.
But recent iOS devices appear tough to crack. For example, Russian digital forensics toolmaker Elcomsoft says its iOS Forensic Toolkit -- only sold to law enforcement agencies, intelligence agencies and professional forensic investigators -- can "acquire bit-precise images of Apple iOS devices in real time" from all iPhone, iPad and iPod Touch devices that run iOS 3, iOS 4 and iOS 5. But the iPhone 5, released last year, and which ships with iOS6, doesn't appear to be unlockable with the Elcomsoft tool.