The Justice Department said Friday it still needs Apple’s help to unlock a convicted drug dealer’s iPhone in a New York City case, despite having successfully employed a third party to access a similar device used by one of the terrorists involved in December’s San Bernardino attacks.
Federal prosecutors disclosed their desire to compel Apple to help it unlock the drug dealer’s phone in a three-sentence court filing in the Eastern District of New York, the latest salvo in a long-running, high-stakes legal dispute with the California-based technology company.
The outcome in the New York case could shape how future standoffs are handled between communications firms seeking to protect the privacy of their customers and law enforcement agents trying to solve and prevent crimes.
The Justice Department last month dropped a higher-profile legal fight in California that sought to force Apple to write software to help it unlock the iPhone used by Syed Rizwan Farook, who along with his wife launched a Dec. 2 attack in San Bernardino that left 14 dead and many others wounded.
In dropping the case, federal prosecutors said the FBI was able to employ an unidentified third party to successfully unlock the phone and extract its data, circumventing the strong encryption on the device.
The New York case involves an iPhone using an older operating system without such encryption. In fact, when presented with similar court orders, Apple unlocked dozens of such phones and even provided agents last year with technical language necessary to obtain a search warrant seeking its assistance in opening the New York drug dealer’s device.
A federal magistrate judge, however, felt the Justice Department might be going too far in using an 18th century law, known as the All Writs Act, to have Apple unlock the phone.
The judge asked Apple to officially weigh in, and the Cupertino-based technology powerhouse agreed, arguing the government was going too far in ordering it to unlock the phone.
On Feb. 29, Magistrate Judge James Orenstein ruled in Apple’s favor and blocked the Justice Department from compelling the firm to open the phone.
The Justice Department has asked another federal judge, Margo K. Brodie, to review Orenstein’s ruling. In a court filing Friday, it reiterated that position, saying it had no intention of modifying its position, an apparent reference to its success in getting into Farook’s phone.
“The government continues to require Apple’s assistance in accessing the data,” prosecutors wrote.
FBI Director James B. Comey has said that the method of cracking Farook’s code would work only on that type of phone, an iPhone 5C, but not newer ones. The drug dealer’s phone was the newer 5S.
"The world has moved on to 6S,'' Comey told students at Kenyon College on Wednesday. "This doesn't work in 6S; this doesn't work in a 5S... We have a tool that works on a narrow slice of phones.''
Apple has until April 15 to respond to the government’s filings seeking to overturn Orenstein’s order.
Apple plans to challenge the government’s assertion that investigators have exhausted all other options to get data off the iPhone, an attorney for the company told reporters Friday. It isn’t clear how many alternatives the FBI should try before turning to the courts for Apple’s help, the attorney said, but it should be told what methods the FBI tried and who else the agency has sought help from.
The Apple attorney also said that the company is confident that Apple’s continually improving security measures soon will render the undisclosed San Bernardino hacking method obsolete, though the company said it has no knowledge of the process the FBI and the third party used.
Separately, software executives and privacy advocates are pushing back against a Senate proposal to require all U.S. tech companies to create products so data can be accessed with a court order.
An early draft of a bill by Sens. Richard Burr (R-N.C.) and Dianne Feinstein (D-Calif.) would require companies to provide technical assistance to open phones or unlock encrypted messages when ordered to do so by a judge.
The nine-page bill, labeled a "discussion draft," is the opening salvo in a heated debate over how far companies should have to go to access locked user data.
Burr and Feinstein, the chairman and top Democrat on the Senate Intelligence Committee, said they are still finalizing the bill and would not comment on the specific language in the draft. A copy was reviewed by the Los Angeles Times. Details of the draft bill were first published by The Hill newspaper.
"The underlying goal is simple," Burr and Feinstein said in a joint statement about the bill. "When there's a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out. No individual or company is above the law," they wrote.
Morgan Reed, executive director for the App Assn., a software industry group in Washington, D.C., said the bill is “incredibly broad.”
The draft bill, he said in a telephone interview, requires companies to hand over data requested by courts in divorce and other civil proceedings in addition to criminal cases. It also would force software vendors such as Apple’s iTunes App Store to block the sale of apps and programs that the government can’t access fully with court orders.
“This really isn’t a starting point for anything,” Reed said. “This is an ending point for our current innovation economy,” he said.
Neema Singh Guliani, legislative counsel with the American Civil Liberties Union, said the bill “ignores economic, security and technical reality.” Guliani said Burr and Feinstein should “abandon their efforts to create a government backdoor.”