Matthew Keys, Freelance Journalist

5377 Vaca Station Road #283

Elmira, California 95825
To: The Honorable Sheri Pym
Magistrate Judge
Central District of California
3470 12th 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 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 remedies, including some already within the
governments own abilities, already exist that would achieve the same objective1 would not
just be an undue burden on that companys 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
assistance to police in unlocking a single iPhone allegedly used by a domestic terrorism suspect2.
They expect the court and the public to believe that Apples assistance on this particular device
would be limited only to the device in question3, 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 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
technology4 and that the company chooses to it could destroy that technology5 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
2

Wired, March 2, 2016: http://www.wired.com/2016/03/feds-might-get-iphones-without-apples-help/

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-sanbernardino-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 fact that the government is wrong on all of
these points and that it has been disingenuous with both the court and 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 governments points; my letter will focus
squarely on the governments 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 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 this case is being
closely watched by police and 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 Apples cooperation in unlocking phones in numerous other cases ranging from
robbery to homicide.6
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 counting 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 conveys 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
jury indictment charging me with three felony criminal counts7 brought under the federal
Computer Fraud and Abuse Act.8 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 Angeles
Times news feature. That change was apparently active for no longer than 40 minutes and was
quickly fixed by an editor upon its discovery.

New York Times, February 22, 2016: http://www.nytimes.com/2016/02/23/technology/apple-unlock-iphone-sanbernardino.html

7
The case was brought in the Eastern District of California and was designated case number 2:13-cr-00082.
8

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
a full-scale criminal investigation9 after I refused to hand over source material related to my
research and subsequent stories to a federal law enforcement agent in April 2011.
Documents published online10 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 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 governments 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 Press reporter in a bomb threat investigation.11
The government was criticized for collecting the phone records of Associated Press reporters in a
homeland security investigation.12 The government was criticized for threatening to jail a New
York Times reporter after he refused to disclose the identity of a source.13 The government
actually jailed a different New York Times reporter after she initially refused to disclose the
identity of a source.14

The governments 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-subpoenasjustice-department-obtained-ap-phone-records-in-leak-investigation/2013/05/13/11d1bb82-bc11-11e2-89c93be8095fe767_story.html
13
Vanity Fair, April 2015: http://www.vanityfair.com/news/2015/03/james-risen-anonymous-source-government-battle
14

New York Times, June 2005: http://www.nytimes.com/2005/07/07/politics/reporter-jailed-after-refusing-to-name-source.html

This is the reason why groups like the Center for Media Justice15 and the Online News
Association16 have written letters both open letters and ones specifically addressed to this
court voicing their concern about the Department of Justices motion in this case. They have
very real concerns that the government will abuse any method or discretion afforded to it through
a victory in this case to target journalists who commit acts of journalism with which it disagrees.
Time and time again, we have seen, through the governments own actions, that this concern is
extremely valid.
But the governments invocation of the phrase national security isnt limited to mere
acts of journalism with which it disagrees. In fact, the governments 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 governments use of a once-secret cellphone
surveillance device17 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 that police used
StingRay devices without obtaining judicial warrants.19
In these cases, the government took what precedent it had through the courts and
legislation to apply means and technology 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 concealed their use of a StingRay from the accused and their 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 chance to invoke homeland security as
reason enough to exploit any weakening of Apples encryption technology for their own fullscale investigations, whether its warranted or not. If the court grants an order forcing Apple to
maim its own security, its not a question of whether the government will seek to abuse this
precedent in benign cases its 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
matthew.keys@gmail.com | 415-857-2407
cc:
The Law Firm of Gibson Dunn & Crutcher, LLP
Theodore J. Boutrous, Jr. at tboutrous@gibsondunn.com
Nicola T. Hanna at nhanna@gibsondunn.com
Eric D. Vandevelde at evandevelde@gibsondunn.com
Theodore B. Solson at tolson@gibsondunn.com
The Law Firm of Zwillgen PLLC
Marc J. Zwillinger at marc@zwillgen.com
Jeffrey G. Landis at jeff@zwillgen.com
Apple, Inc.
Kristin Huguet at khuguet@apple.com
Colin Smith at colins@apple.com
Starlayne Meza at starlayne@apple.com
The United States Department of Justice
Tracy Wilkison at tracy.wilkison@usdoj.gov