This Isn't the First Time the FBI has Asked Apple to Unlock an iPhone

Although there has been much more attention payed to the current struggle between the FBI and Apple, new unsealed court documents reveal that there have been dozens of other requests to unlock devices.

by Joe Nelson, San Bernardino County Sun, Calif. / February 25, 2016
Protesters, including Victoria Best and Charles Fredricks, hold signs in support of Apple outside of the Apple store in Santa Monica, Calif., on Feb. 23, 2016. (Katie Falkenberg/Los Angeles Times/TNS)

(TNS) -- Recently unsealed court documents show that the U.S. Justice Department has sought access to at least a dozen iPhones and other Apple devices in cases nationwide, not just in the San Bernardino terrorism investigation.

As Apple prepares an official response to a federal magistrate’s Feb. 16 order to assist the government in accessing an iPhone used by the gunman in the San Bernardino terrorist attack, a pending federal drug case in New York underscores Apple’s reluctance to assist the government.

Similar to the San Bernardino case, federal prosecutors in New York sought a court order via an 18th century statute called the All Writs Act to compel Apple to help access an iPhone seized during a methamphetamine trafficking investigation.

The All Writs Act gives the court the authority to order a third party to provide nonburdensome technical assistance to law enforcement officers. The law was also used to secure the recent order by Magistrate Sheri Pym compelling Apple to cooperate in the San Bernardino terrorism case. Apple is expected to file its response in U.S. District Court in Riverside on Friday.

In the New York case, Magistrate James Orenstein on Feb. 16 ordered Apple to produce a list of other cases in which the government sought its assistance in accessing iPhones and other Apple devices. Apple counsel Marc Zwillinger provided the list the following day, as well as an inventory of items the government requested access to, court records show.

The list included 10 iPhones of various versions, an iPad 2 and an unspecified device. The cases stemmed from Massachusetts, Illinois, California and New York, and Zwillinger noted in his letter to Orenstein — recently made public — that Apple had since received additional court orders in Illinois and Ohio.

Although the defendant in the New York case pleaded guilty in October, prosecutors maintained that accessing his iPhone was not a moot issue because the government still sought evidence as part of its ongoing investigation and the defendant had not yet been sentenced, according to a letter from Zwillinger to Orenstein dated Feb. 12.

Federal prosecutors in New York weighed in on the issue in their own letter to the magistrate on Monday, saying Zwillinger made clear that numerous judges around the nation have found it appropriate, under the All Writs Act, to order Apple to assist the government in accessing passcode-locked Apple devices.

“Apple did not file objections to any of the orders, seek an opportunity to be heard from the court, or otherwise seek judicial relief,” according to the letter submitted by U.S. Attorney Robert L. Capers and drafted by three prosecutors assigned the case. “In most cases, rather than challenge the orders in court, Apple simply deferred complying with them, without seeking appropriate judicial relief.”

The prosecution’s letter noted the San Bernardino case, how it brought the issue into the national spotlight and how Apple has since taken an oppositional stance.

“Only more recently, in light of the public attention surrounding an All Writs Act order issued in connection with the investigation into the shootings in San Bernardino, California, has Apple indicated that it will seek judicial relief,” the letter states. “Apple’s position has been inconsistent at best. The overwhelming weight of law and precedent continues to support the government’s application in this case.”

Zwillinger could not be reached for comment Wednesday.

While the cases in New York and elsewhere appear to contradict what investigators in the San Bernardino terrorism case have said in their pleadings — that their request is exclusive to one particular iPhone 5S used by gunman Syed Rizwan Farook — the government’s action in the San Bernardino case is the first one requesting Apple’s assistance in unlocking an iPhone with iOS9 technology.

U.S. Attorney spokesman Thom Mrozek declined to comment.

In an interview Tuesday with ABC News, Apple CEO Tim Cook said that the company could be exposing its customers to “incredible vulnerabilities” if it assists the government in creating software to unlock Farook’s iPhone.

“This is not something that we would create. This is something that would be bad for America,” Cook said during the interview. “It would also set a precedent that I believe many people in America would be offended by. Some things are hard, and some things are right, and some things are both — this is one of those things.”

©2016 the San Bernardino County Sun (San Bernardino, Calif.) Distributed by Tribune Content Agency, LLC.