US Justice Department appeals ruling that protects Apple from unlocking iPhone of New York drug dealer

A sign protesting the FBI's court order against Apple is seen outside an Apple store in New York on Feb 23.
A sign protesting the FBI's court order against Apple is seen outside an Apple store in New York on Feb 23. PHOTO: AFP

WASHINGTON (REUTERS/BLOOMBERG) - The United States Justice Department on Monday (March 7) sought to overturn a ruling that protects Apple from unlocking an iPhone in a New York drug case.

A magistrate judge in Brooklyn last week ruled that the Justice Department could not compel the tech giant to unlock the phone. The government on Monday resubmitted its arguments to a higher judge overseeing the matter.

Prosecutors are relying on the same law in its fight against Apple in a California court, where a judge ordered Apple to unlock an encrypted phone belonging to one of the San Bernardino shooters.

The clash has intensified a long-running debate over how much law enforcement and intelligence officials should be able to monitor digital communications.

In its filing on Monday, the Justice Department cited the California decision as evidence that the All Writs Act has been used to compel Apple to unlock the phones. Additionally, the government argued that the phone at issue in New York runs an older operating system which Apple has agreed to crack several times in previous cases.

US Magistrate Judge James Orenstein in Brooklyn ruled last week that he did not have the legal authority under the All Writs Act to order Apple to hand over the data from the phone.

In a statement on Monday, Apple said it agreed with Judge Orenstein's ruling, which said the Justice Department's request would "thoroughly undermine fundamental principles of the Constitution".

Apple chief executive Tim Cook has said he is willing to take the California case to the Supreme Court. Apple has said it would create a "back door" to phones that could be abused by criminals and governments.

The phone in the New York case belonged to Jun Feng, who has since pleaded guilty to participation in a methamphetamine distribution conspiracy. The Justice Department sought to unlock Feng's phone to find other conspirators.

Unlike the phone used by Rizwan Farook in San Bernardino, Feng's phone had an iOS 7 mobile operating system, which is not protected under the same encryption technology.

"Apple has the technological capability to bypass the passcode feature and access the contents of the phone that were unencrypted," the Justice Department said in its Monday filing.

The Justice Department has asked District Court Judge Margot Brodie to hear the case.

Federal prosecutors said Apple agreed to unlock a Feng's iPhone before abruptly changing course in October after a judge said he wanted more information from the company before issuing a warrant.

Apple's response was "the first time ever" it opposed the government on such a demand, the Justice Department said on Monday in appealing the magistrate judge's Feb 29 decision.

"The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before," the government said in a 51-page legal brief. "The company has complied every time. Until now."

The government in its brief argued that Apple's about-face was driven by marketing concerns rather than principle. It's the same claim that prosecutors made last month in California, where the company is waging a legal and public relations battle against a US demand that it assist investigators by unlocking the phone used by the gunman in the December massacre in San Bernardino.

The issue burst into the public consciousness with that case, but by then Apple had been fighting the US for months in Brooklyn, New York.

On Monday, prosecutors in Brooklyn said it was only Judge Orenstein's reluctance to automatically issue a warrant that spurred Apple to fight.

"Given the public attention directed to the case by the magistrate judge, Apple's public relations concerns prompted it to object," they said in their appeal to a district judge.

Apple has helped the government unlock at least 70 iPhones before it stopped cooperating, prosecutors have said.

Last month, in response to the California judge's order that Apple aid in the San Bernardino investigation, Mr Cook said US demands for iPhone access are a chilling attack on privacy.

The government has sought Apple's help because self-destruct features on newer iPhones wipe out data if prosecutors try "brute force" techniques to hack in.

The contents of the drug dealer's phone were not backed up to remote cloud storage, leaving the physical device as the only source of data, the US said.

In its filing on Monday, the government focused squarely on the technology at issue in the phone, which is different from that in the California case.

The phone in Brooklyn runs an iOS 7 operating system, which Apple routinely and easily accessed at its headquarters at the request of law enforcement, prosecutors said in their brief.

When the government first contacted Apple about the drug dealer's phone, an Apple "data extraction specialist" said it could access data on pre-iOS 8 phones after receiving a search warrant. The next day, the government sought a warrant from Judge Orenstein, who in turn asked Apple how difficult it would be.

That Apple routinely extracted data from such devices shows the government's request is not "burdensome" and doesn't violate the All Writs Act, a 1789 law that prosecutors used to demand that Apple help access data on locked phones, the US said.

In refusing the US, Judge Orenstein sided with the company's claim that prosecutors were taking the law too far. He said Congress should resolve the issue.

In their appeal, prosecutors said the All Writs Act authorizes courts to issue such warrants and that Judge Orenstein's "analysis goes far afield of the circumstances of this case and sets forth an unprecedented limitation of federal courts' authority".

Apple was asked "to perform a simple task: 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", prosecutors said. "This is how the system is supposed to work."

"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," Apple said in its Monday statement.

The phone used by the San Bernardino shooter runs iOS 9, a newer version of Apple software with enhanced encryption.

To comply with that request, Apple has said it would require as many as 10 engineers at work for a month writing new code.

Mr Cook has said that would impose an "undue burden" on the company and threaten the security of millions of customers.  For the Brooklyn phone, it would take Apple no more than a few hours, according to the government. Prosecutors said they have no other way to access the drug dealer's data.