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Justice Department Asks Judge To Reconsider New York iPhone Case

Government lawyers are appealing a court ruling that found it could not force Apple to pull data from an iPhone in a New York drug case. Apple says the government's logic "would start us down a slippery slope that threatens everyone’s safety and privacy.”

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The Department of Justice is asking a district court judge to review a request compelling Apple to help law enforcement extract data from an encrypted iPhone in a drug-related case.

Last week, U.S. Magistrate Judge James Orenstein of the Eastern District of New York sided with Apple, ruling that the government could not rely on the All Writs Act to force Apple to help federal investigators pull data from a locked device.

In its appeal, the Justice Department has asked that the court not adopt Orenstein’s legal analysis, because his decision would set forth “an unprecedented limitation on federal courts’ authority pursuant to the All Writs Act to issue orders in aid of their jurisdiction.”

The Justice Department maintains that Apple has assisted law enforcement in pulling data from locked iPhones in at least 70 other cases. In the filing, government lawyers argue that the request is “something that Apple can easily do, that it has done many times before, and that will have no effect on the security of its products or the safety of its customers.”

In response to the government’s appeal, Apple provided a statement to BuzzFeed News: "Judge Orenstein ruled the FBI’s request would 'thoroughly undermine fundamental principles of the Constitution’ and we agree. We share the Judge’s concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone’s safety and privacy.”

Across the country in California, another high-profile case has entangled Apple and the Justice Department in an intense legal battle. There, the federal government has demanded that Apple design new software that would disable and bypass several security features built into an iPhone belonging to one of the shooters who killed 14 people in San Bernardino last year. The iPhone in the San Bernardino case, however, runs on Apple’s most advanced operating system, iOS 9, which prevents the company from extracting data without unlocking the phone.

As the Justice Department highlights in its appeal in New York, what it’s asking of Apple here is not the same as in San Bernardino. “Apple is not being asked to do anything it does not currently have the capability to do,” the department’s lawyers wrote in the New York case.

“All of Apple’s pre-iOS 8 operating systems allowed for extracting data from a passcode-locked device,” according to the brief. “Apple has used that capability dozens of times, in response to lawful court orders like the one sought here, with no claim that doing so put customer data or privacy in harm’s way.”

Apple will have a chance to formally respond to the government’s filing, at which point a district judge will decide how to move forward on the government’s request.

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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