Matthew Keys, Freelance Journalist 5377 Vaca Station Road #283 Elmira, California 95825
To: The Honorable Sheri Pym Magistrate Judge Central District of California th 3470 12 Street Riverside, California 92501
March 18, 2016
Sent via Electronic and Certified Postal Mails
Re: The search of an Apple iPhone seized during the execution of a search warrant on a black Lexus IS300, California license plate #5KDG203, Case 16-CM-00010. To the Honorable Judge Sheri S heri Pym, Magistrate Judge, Central District of California: To force Apple or any technology company to maim its own security mechanisms at the request of law enforcement — when other o ther remedies, including some already within the 1 government’s own abilities, already exist that would achieve the same objective — would not just be an undue burden on that company’s business. That order of force would have devastating consequences for individuals and groups — including journalists and activists — across the country and around the world. In this case, the Department of Justice — through its counsel, law enforcement agents and others — expects the court and the public believe that only Apple is capable of providing 2 assistance to police in unlocking a single iPhone allegedly used by a domestic terrorism suspect . They expect the court and the public to believe that Apple’s assistance on this particular device 3 would be limited only to the device in question , and that such an order would not necessarily be applicable to other devices that it and other agencies may seek to unlock in other criminal investigations. They expect the court and an d the public to believe that Apple, if it is required to create technology to assist in unlocking the phone, could retain complete control of that 4 5 technology and that the company chooses to it could destroy that technology once it assists the government. They expect the court and public to believe that an order compelling Apple to maim its own security mechanisms would not be systemically abused by the government, would not set a precedent to be followed in other cases and is in the interest of national security. 1
Wired, March 2, 2016: http://www.wired.com/2016/03/feds-might-get-iphones-without-apples-help/
2
CNBC, March 10, 2016: http://www.cnbc.com/2016/03/10/justice-department-accuses-apple-of-false-corrosive-rhetoric-in-fbidispute.html 3
Reuters, February 17, 2016: http://finance.yahoo.com/news/doj-asking-apple-access-one-184928217.html
4
Wired.com, February 19, 2016: http://www.wired.com/2016/02/doj-files-motion-to-compel-apple-to-cooperate-in-san bernardino-case/ 5
FOX News Channel, February 20, 2016: http://www.foxnews.com/us/2016/02/20/doj-would-allow-apple-to-keep-or-destroysoftware-to-help-fbi-hack-iphone.html
Based on my professional knowledge as a journalist who has covered the intersections of technology, policy and media for the last several years and my personal experience with this Department of Justice on matters involving criminal investigations related to the Internet and computers, I can state with absolute, unequivocal unequ ivocal fact that the government is wrong on all of these points and that it has been bee n disingenuous with both the court and a nd the public on its abilities and intentions in this matter. Through their public letters and amicus briefs, some have already presented solid contrary evidence on many of the government’s points; my letter will focus squarely on the government’s allegation that an order in this case would not create a precedent for other cases and investigations. The government knows its assertion that an order in this case would not set precedent prece dent is untrue, because the Department of Justice has — even in legal briefs and motions filed in this case — cited decisions and opinions in other cases to bolster its own arguments. The government must also know, based on widely published news reports, that the outcome of o f this case is being closely watched by police and an d prosecutors across the country, and that some of those prosecutors have themselves admitted that a favorable opinion for the government in this case would compel them to seek Apple’s cooperation in unlocking phones in numerous other cases ranging from 6 robbery to homicide. In this case, no one disputes that domestic terrorism disqualifies as a homeland security issue. But robbery and homicide, although devastating to the victim and detrimental to society, are not homeland security issues. Yet this case would set a precedent that would trickle down to those very investigations. Prosecutors across the nation are coun ting on it. Even if forcing Apple to create encryption-maiming software were limited in applicability exclusively to homeland security issues, the government — and in particular, this Department of Justice — has perverted the very term. The phrase “homeland security” has widescale applicability in criminal investigations conducted at the local, state and federal levels, and although the definition to ordinary Americans conve ys a sense of strong importance, the government has and continues to invoke it in investigations of lesser importance. I have intimate first-hand experience of the government invoking “homeland security” in what many consider to be a rather benign case. Three years ago, a prosecutor secured a grand 7 jury indictment charging me with three felony criminal counts brought under the federal 8 Computer Fraud and Abuse Act. The alleged scheme purportedly involved the passing of login credentials to an online news site that allowed one individual to make changes to a Los a Los Angeles Times news Times news feature. That change was apparently active for no longer than 40 minutes and was quickly fixed by an editor upon its discovery.
6
New York Times, Febru ary 22, 2016: http: //www.nytimes.com/2016 /02/23/technology/app le-unlock-iphone-san bernardino.html 7 8
The case was brought in the Eastern District of California and was designated case number 2:13-cr-00082.
See 18 U.S. Code § 1030 - Fraud and related activity in connection with computers: https://www.law.cornell.edu/uscode/text/18/1030
The scheme alleged by prosecutors related to a journalistic investigation I conducted in December 2010 on an online hacker group that had conducted several high-profile campaigns against online merchants. The government alleges I played a role in the hacking of the Los Angeles Times, which was owned by a former employer; I have always maintained that my observation of the group was one of journalistic interest, pointing to my assistance to other journalists with their research on the matter, and even my own written work based on said experiences. Nonetheless, the government claimed more than mere journalistic observation, launching 9 a full-scale criminal investigation after I refused to hand over source material related to my research and subsequent stories to a federal law enforcement agent in April 2011. 10
Documents published online offer a detailed account of how the government exploited measures and practices afforded to it under the guise of “homeland security” for this investigation. Those documents include a Federal Bureau of Investigation memo dated March 20, 2012 that specifically says the case was being pursued “consistent with the method required in Appendix A for National Security Secu rity investigations,” and other documents related to clandestine and warrantless surveillance conducted on my New Jersey apartment between February and September 2012. Scores of people, including critics of mine, have argued that the government’s tactics in my case were heavy-handed and are not commensurate to the alleged crime. Indeed, most reasonable people would likely say that changing a news article on a website does not warrant a full-scale national security investigation. But the government did just that. And it has done so in other matters involving journalists and journalism: The government was criticized for impersonating an Associated an Associated Press reporter Press reporter in a bomb threat investigation.11 The government was criticized for collecting the phone records of Associated of Associated Press reporters Press reporters in a 12 homeland security investigation. The government was criticized for threatening to jail a New a New 13 York Times reporter Times reporter after he refused to disclose the identity of a source. The government actually jailed a different New different New York Times reporter Times reporter after she initially refused to disclose the 14 identity of a source.
9
The government’s investigation resulted in charges brought in March 2013 and a conviction by trial in October 2015. The conviction is being appealed; but because the conviction involves computer crime charges that are considered an “act of terrorism” under the federal legislative definition, I could now be considered a convicted domestic terrorist.
10
The documents referenced here were published among others on the website Cryptome sometime in July 2015: https://cryptome.org/2015/07/matthew-keys-doj-fbi.zip
11
Associated Press, October 28, 2014: http://www.ap.org/Content/AP-In-The-News/2014/AP-Seattle-Times-Upset-About-FBIImpersonation 12
Washington Post, May 13, 2013: https://www.washingtonpost.com/world/national-security/under-sweeping-subpoenas justice-department -obtained-ap-phone-records-i n-leak-investigation/ 2013/05/13/11d1bb82-bc11-11e2- 89c93be8095fe767_story.html 13 14
Vanity Fair, April 2015: http://www.vanityfair.com/news/2015/03/james-risen-anonymous-source-government-battle New York Times, June 2005: http://www.nyt imes.com/2005/07/07 /politics/reporter-jail ed-after-refusing-to-name -source.html
15
This is the reason why groups like the Center for Media Justice and the Online News 16 Association have written letters — both open letters and ones specifically addressed to this court — voicing their concern about abo ut the Department of Justice’s motion in this case. They have very real concerns that the government go vernment will abuse any method or discretion afforded to it through a victory in this case to target journalists who c ommit acts of journalism with which it disagrees. Time and time again, we have seen, through the government’s own actions, that this concern is extremely valid. But the government’s invocation of the phrase “national security” isn’t limited to mere acts of journalism with which it disagrees. In fact, the government’s perversion of the phrase has allowed it to obtain court orders, techniques, systems and technologies that impact millions of ordinary Americans. Nowhere is that more true than with the government’s use of a once-secret cellphone 17 surveillance device known as a “StingRay.” The federal government initially defended its desire to use the device by saying it was necessary to thwart terrorism. Later, the local law enforcement officials at the state, county and city levels also said they needed the device to thwart domestic and foreign terrorism in their own communities. Often, “national security” was the phrase paraded by law enforcement officials who sought access to the device and authorization to use it. But in recent years, public records obtained by journalists and advocacy groups have revealed police use StingRay devices in a wide variety of investigations that have nothing to do with homeland security18. And, in most cases, journalists have discovered d iscovered that police used 19 StingRay devices without obtaining judicial warrants. In these cases, the government took what precedent it had through the courts and legislation to apply means and technology techno logy normally reserved for homeland security investigations in all kinds of other, often benign, investigations. In those cases, other remedies existed that would have allowed police to conduct quick and thorough investigations. But the government defended its decision to circumvent the law (or, in the cases involving journalists, damage the goodwill and reputation of journalistic institutions) by asserting “homeland security,” even when the cases had nothing to do with it.
15
Apple, March 3, 2016: http://images.apple.com/pr/pdf/Beats_Rhymes_Relief_Center_for_Media_Justice_The_Gathering_for_Justice_Justice_League_N YC_Opal_Tometi_and_Shaun_King.pdf
16
Online News Association, March 4, 2016: http://journalists.org/2016/03/04/ona-supports-apple-in-fighting-fbis-master-keydemands/ 17
For details on the StingRay device and its abilities, see: http://www.scientificamerican.com/article/what-is-the-big-secretsurrounding-stingray-surveillance/
18
At least one law enforcement official has acknowledged on the record that agents are permitted to use StingRays in “criminal investigation with no restrictions on the type of crime.” See: https://www.scribd.com/doc/304946004/Gwinnett-County-GeorgiaStingRay-E-mails 19 In some of those cases, appellate judges have overturned the convictions of criminals after it was revealed police and prosecutors had conce aled their use of a StingRay from th e accused and the ir counsel.
The government has already proven it is willing to invoke “homeland security” in just about any case regardless of circumstance, and it does so with apparent impunity. Prosecutors and investigators across this land are salivating at the c hance to invoke “homeland security” as reason enough to exploit any weakening of Apple’s encryption technology for their own fullscale investigations, whether it’s warranted or not. If the court grants an order forcing Apple to maim its own security, it’s not a question of whether the government will seek to abuse this precedent in benign cases — it’s a matter of when, and this court should seriously consider what those ramifications will be with respect to free speech, a free press and due process of law.
Sincerely,
Matthew Keys Freelance journalist
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