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Just two weeks ago, the government dropped its effort to require
Apple to crack an iPhone used by one of the shooters in the December
attacks in San Bernardino, California, saying it had unlocked the
phone without Apple's help.
Some observers thought the government would back away from the New
York case too, since the suspect has already pleaded guilty. But in
a letter filed in federal court in Brooklyn, New York, the Justice
Department said, "The government continues to require Apple's
assistance in accessing the data that it is authorized to search by
warrant."
An Apple attorney said Friday the company was disappointed but not
surprised that the government would continue to fight in New York
after giving up in California.
He said the appeal belied the FBI's claim that the San Bernardino
case was about a single phone and the need to stop future terror
acts.
Apple, with the strong support of most of the technology industry,
argues that requiring it to circumvent the encryption in its own
products would inevitability open the door for hackers and foreign
spies and undermine security for everyone. The company has said it
is willing to take the issue to the Supreme Court.
The phones in the two cases have different security features, with
the New York phone running an earlier version of the iPhone
operating software. The director of the Federal Bureau of
Investigation, James Comey, who is leading the battle against Apple,
said Thursday that the method used on the San Bernardino phone would
not work on other models.
But the New York phone is much easier for Apple to break into. Apple
has acknowledged it could get data from the drug dealer's phone
without crafting special software, as it would have had to do with
the San Bernardino phone.
Apple helped law enforcement with earlier iPhones on some 70
occasions, according to court documents, and it objected to the
order in the New York case only after it was invited to do so last
fall by U.S. Magistrate Judge James Orenstein.
Since then, Apple has declined to comply with such orders without a
fight, a person close to the company said. In a case that came to
light Friday, a Boston judge had ordered Apple to cooperate in a
gang case. Apple also objected there, and the Justice Department
said it has not yet decided whether to push again to force its
assistance.
In a ruling issued on Feb. 29, Orenstein came down firmly on Apple's
side, rejecting the idea that an old law known as the All Writs Act
gave judges the power to order Apple's help. That judge, Apple and
the FBI have all said the balance between encryption and law
enforcement access should be struck by Congress, and one such
proposal is nearing formal introduction by the leaders of the Senate
intelligence committee.
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The Justice Department announcement Friday, however, showed it will
continue to fight in the courts as well.
Jill Bronfman, director of the Privacy and Technology Project at
University of California Hastings College of the Law, questioned
whether the facts involved in the New York case would make a strong
test case over encryption. While extracting data from the phone in
the New York case would be an easier technical feat for Apple, the
facts in the case are far less compelling, she said.
“If you want to do a balancing test and you’ve got terrorism on one
side of the scale, that’s a very heavy weight,” she said. “We’ll see
how the request is balanced when we have drugs on the other side.”
Apple is scheduled to file papers in opposition of the Justice
Department's appeal by April 15.
In its appeal, the Apple lawyer said the company would try the same
thing it was planning in California: demanding that government show
it had tried all possible alternative means of getting into the
phone.
That could force the FBI to reveal closely held details of its
efforts to break into phones.
Federal law enforcement officials declined to say whether they were
looking into having third parties unlock the phone in the New York
case.
The phone in the Brooklyn case belonged to Jun Feng, who has pleaded
guilty to participation in a methamphetamine distribution
conspiracy. The Justice Department is seeking to unlock Feng's phone
to find other conspirators.
(Reporting by Nate Raymond in New York and Julia Love and Joseph
Menn in San Francisco; Editing by Phil Berlowitz, Leslie Adler and
Bernard Orr)
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