David Gray / Reuters
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 Brooklyn, the iPhone 5s is believed to contain evidence of a drug conspiracy, investigators 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 will press the government to prove they have 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, arguing that the Justice Department has misinterpreted the All Writs Act.
"[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 motion 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 in Brooklyn, 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 the San Bernardino case, 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 their 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 invoked as the basis for the court order — could not be used 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.
"While Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing criminals the government's sweeping interpretation of the All Writs Act 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."
The Justice Department did not immediately respond to a request for comment. Judge Brodie has ordered the government to respond to Apple’s challenge by April 22.
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