Apple has formally challenged the U.S. Department of Justice over another locked iPhone and the encrypted information it contains.
Owned by an accused methamphetamine distributor in New York, the iPhone 5s is believed to contain evidence of a drug conspiracy, federal prosecutors said. The government claims that its technicians can’t penetrate the locked iPhone and require Apple’s help to get inside.
Apple, however, isn’t so sure. The company’s lawyers argued that the government has failed to prove it has exhausted all other means to crack the iPhone. And in a move that’s loaded with legal significance, Apple challenged the government’s authority to force tech firms to access encrypted data. The iPhone maker believes the Justice Department has gone too far in its use of the the All Writs Act, the law invoked by the government to force Apple to assist in the investigation.
"[T]he government has utterly failed to satisfy its burden to demonstrate that Apple’s assistance in this case is necessary," Apple's lawyers wrote in a brief filed Friday afternoon. "This Court should reject the government’s overreaching and unsupported interpretation of the All Writs Act, and deny the government’s application."
Apple’s formal challenge, filed in the Eastern District of New York, follows the unprecedented legal battle between the company and the FBI in San Bernardino, where the government's law enforcement powers were set to collide with consumer privacy and encryption technology in a courtroom showdown.
In San Bernardino, federal investigators sought Apple’s assistance to create new software to break into an iPhone used by Syed Farook, who with his wife killed 14 people and injured 22 in a mass shooting in 2015. But in a surprise, last-minute announcement, the Justice Department called off the litigation after an unidentified outside party showed the FBI how to get into the device.
After the secret method proved successful in San Bernardino, some expected the Justice Department to abandon the New York case. But FBI Director James Comey said earlier this month that the San Bernardino method only works on a “narrow slice of phones.” The New York iPhone is a model 5s, but the FBI’s San Bernardino exploit only works on the model 5c, Comey said.
In a letter filed to the Brooklyn court last week, the Justice Department confirmed it would seek a court order to compel Apple to help, even after the strange and unexpected turn of events in San Bernardino. “The government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant,” federal prosecutors wrote.
But Apple’s attorneys said they will push the government to prove why the San Bernardino method cannot work on the New York iPhone. They will also ask government technicians to show what other methods they have tried, and will urge them to reveal the extent of their search to find outside parties that may be able to assist.
Throughout the San Bernardino fight, the Justice Department maintained that Apple alone had the ability to access the device. Only after the controversial case generated worldwide press coverage did additional outside parties contact the FBI, leading to the breakthrough, law enforcement officials said.
For some tech experts, privacy lawyers, and members of Congress, the San Bernardino plot-twist damaged the Justice Department’s credibility on encryption; they questioned why the government didn’t vigorously seek outside help at the outset, rather than pick what was ultimately an unnecessary court fight with Apple.
The Brooklyn case differs from San Bernardino in several important ways. Crucially, the Brooklyn iPhone runs an older operating system, iOS 7, which means that Apple is already capable of bypassing the phone’s lock screen and extracting its data onto a separate hard drive.
Unlike San Bernardino, the government is not asking Apple to create new software to defeat the phone’s security features.
The Justice Department hopes to persuade Judge Margo Brodie that its request is neither burdensome nor unprecedented. In fact, Apple has complied with similar data extraction requests in 70 other cases, according to court documents and law enforcement officials.
But in the same New York case, in February, Magistrate Judge James Orenstein denied the government’s request for a court order. Orenstein concluded that the All Writs Act — the 18th century statute the government used as the basis for the court order — could not be relied upon to force a technology company like Apple to pull encrypted data from a suspect’s device.
The government has now re-applied for the same court order, appealing up to the District Court, where Judge Brodie will decide whether or not to grant the order.
For the Justice Department, the All Writs Act in the New York case serves as a vital law enforcement tool to ensure that investigators can search the iPhone. But Apple’s attorneys believe this case, like San Bernardino, is an attempt to expand the government’s law enforcement powers, setting a legal precedent for the obligations of technology companies to assist in government surveillance.
"[T]he government's sweeping interpretation of the All Writs Act is plainly incorrect and provides no limit to the orders the government could obtain in the future," Apple's lawyers wrote. "And that is precisely what the government seeks here: to obtain an order that it could use as precedent to lodge future, more onerous requests for Apple's assistance."
In a statement to BuzzFeed News, Emily Pierce, a spokesperson for the Justice Department said that Apple has regularly complied with All Writs Act orders in the past, and that this case "represents a change in Apple's willingness to do so."
“As we have noted in our court filings, the Supreme Court made clear nearly 40 years ago that the All Writs Act authorizes courts to require private companies to assist in carrying out search warrants," she said, adding that courts have relied on the All Writs Act in a variety of investigations.
Judge Brodie has ordered the government to formally respond to Apple’s challenge by April 22.
Hamza Shaban is a technology policy reporter for BuzzFeed News and is based in Washington, DC.
Contact Hamza Shaban at Hamza.Shaban@buzzfeed.com.
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