How two of the biggest names in D.C. fell through Apple’s cracks

From “In Leak Investigation, Tech Giants Are Caught Between Courts and Customers” in Saturday’s New York Times: 

On Feb. 6, 2018, Apple received a grand jury subpoena for the names and phone records connected to 109 email addresses and phone numbers. It was one of the more than 250 data requests that the company received on average from U.S. law enforcement each week at the time. An Apple paralegal complied and provided the information…

Without knowing it, Apple said, it had handed over the data of congressional staff members, their families and at least two members of Congress, including Representative Adam B. Schiff of California, then the House Intelligence Committee’s top Democrat and now its chairman. It turned out the subpoena was part of a wide-ranging investigation by the Trump administration into leaks of classified information…

The number of these requests has soared in recent years to thousands a week, putting Apple and other tech giants like Google and Microsoft in an uncomfortable position between law enforcement, the courts and the customers whose privacy they have promised to protect…

Apple has often challenged subpoenas that included so many accounts because they were too broad, said a former senior lawyer for the company, who spoke on the condition of confidentiality. This person said that it would not have been surprising for Apple to challenge the 2018 Justice Department subpoena but that whether a request was challenged often depended on whether a paralegal handling the subpoena elevated it to more senior lawyers.

My take: If the names Schiff and Swalwell didn’t ring a bell with the Apple paralegal, the .gov email addresses might have triggered an alarm. I gather Google was contractually required to alert the New York Times when FBI requests included addresses ending in .nytimes.com.

BTW, Apple had planned to offer end-to-end iCloud encryption but, according to some good Reuters reporting, backed off at the FBI’s request.

See also: Why didn’t Apple push back when the DOJ spied on Congress?

9 Comments

  1. Fred Stein said:
    I recall from the Epic trial testimony, Apple said that they do respond to lawful subpoena and they get a large number of requests.

    We have to look at numbers. How many total subpoena have Apple received from the US government? How many do Apple reject? How many times does Apple fail to reject an unjustified subpoena?

    These scandal stories, whether labor abuses in the supply chain, or fraudsters in the App Store, etc. devolve to irrelevance when statistics are applied.

    Both Tim and Steve have said literally, “We not perfect.”

    2
    June 12, 2021
  2. David Emery said:
    More importantly: If you’re presented with a properly constituted subpoena request and a gag order, it’s not clear to me what your legal options are. Here’s where I’d want a lawyer to opine (anyone out there got a law degree?)

    1
    June 12, 2021
  3. From same NYT article: “ In the first six months of 2020, Apple challenged 238 demands from the government for its customers’ account data, or 4 percent of such requests.”
    I’m not a lawyer but I do know failure to comply with a subpoena must come with a valid reason you’ll be asked to present to the judge. Otherwise you’ll get fines, prison (rare) & large bills from your lawyers and theirs.

    2
    June 12, 2021
  4. “That person told Reuters the company did not want to risk being attacked by public officials for protecting criminals, sued for moving previously accessible data out of reach of government agencies or used as an excuse for new legislation against encryption.” Whew! Talk about a Faustian Bargain, trading a centerpiece of your quest for privacy to avoid massive PR & legal issues/bills.
    I’ve long used complex long passwords and my face to encrypt/decrypt client’s docs & images in my cloud storage solutions.

    0
    June 12, 2021
  5. Steven Philips said:
    It does raise a question.
    Was Google subpoenaed? Or do all republican “targets” only own iPhones?
    And… Google contractually required to notify NYT???
    What if THAT subpoena came with a gag order?

    0
    June 12, 2021
    • David Emery said:
      Gag order overrides a contract.

      What I’d want to know are the grounds under which Apple (or Google) push back on a subpoena. I’m sure there are technical/procedural grounds, i.e. not completely filled out or too general.

      0
      June 12, 2021
  6. John Konopka said:
    I’d like to know what judge approved all of these subpoenas? Did he just have an ink pad and rubber stamp on his desk?

    2
    June 12, 2021
  7. Rodney Avilla said:
    ” If the names Schiff and Swalwell didn’t ring a bell with the Apple paralegal, the .gov email addresses might have triggered an alarm.”

    I’m confused. Since when does the name on subpoena determine the legality of the subpoena? When certain names come up are they supposed to go by a different legal code?

    2
    June 13, 2021

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