In a letter made public Friday, U.S. prosecutors informed a federal judge in Brooklyn that the FBI still needs Apple to unlock an iPhone 5S to aid in a drug trafficking case, keeping alive a broader legal showdown that pits law enforcement and national security needs against privacy protections.
The move comes less than three weeks after the FBI, with the help of an unidentified third party, successfully hacked the iPhone of one of the San Bernardino shooters and dropped its legal request demanding Apple's help in the terrorism probe there. The iPhones in the San Bernardino and New York cases are different models with distinct encryption, prompting the Justice Department to say in its letter that it cannot access the data in the drug probe without Apple's help -- a claim the company immediately questioned Friday.
The Justice Department letter effectively means the FBI will continue its appeal of a federal magistrate judge's order last month siding with Apple in the New York dispute. Federal prosecutors have asked U.S. District Judge Margo Brodie to overturn the ruling and order Apple to provide the technical aid needed to unlock the smartphone.
While there are at least a dozen other FBI demands to unlock iPhones pending in the federal courts, the New York case is the furthest along in terms of clarifying the legal issues.
Apple attorneys, speaking on condition of anonymity, said Friday they will resist any order forcing the company to help the FBI in the case, arguing that the government is trying to set a broad precedent that would require tech firms such as Apple to crack their own security protections to aid in law enforcement investigations. Unlike the San Bernardino terror case, where federal prosecutors argued they needed the help to fight terrorism, Apple lawyers say the Brooklyn case involves an unnecessary request to unlock an iPhone in a routine sentencing of a methamphetamine dealer.
The Cupertino tech giant also maintains the San Bernardino case demonstrated the FBI can find other ways to crack iPhone security without court orders against Apple. Apple is scheduled to file its formal legal arguments next Thursday.
Apple lawyers said one of their arguments will emphasize that the FBI has insisted on the need for Apple's help hacking its iPhone security but nevertheless found a way to solve the problem in the San Bernardino case and must prove it cannot do the same in New York. Privacy advocates maintain the judge will pay close attention to that factor in evaluating whether the government can show Apple's help is "necessary and appropriate," as the law requires.
"It can't help but be on the court's mind," said Andrew Crocker, a staff attorney with the Electronic Frontier Foundation.
Bolstering Apple's position, Brooklyn-based U.S. Magistrate Judge James Orenstein in March concluded the government does not have the authority to force a company to crack its own security protections, calling it "an unreasonable burden" on Apple.
Legal experts say the government may be forced in the New York case to provide further details about its independent efforts to unlock iPhones, and suggested the Justice Department is pressing forward because it does not want to leave Orenstein's ruling in place for other courts to follow.
"I think this is really about not leaving Orenstein's opinion in place because they hate it," said Albert Gidari, director of privacy at Stanford's Center for Internet & Society.
In a 50-page ruling, Orenstein noted that the 18th-century law invoked by the government to seek the order did not envision the type of debate now unfolding in the courts and in the political arena pitting law enforcement and national security needs against the tech industry's privacy rights. He indicated Congress, not federal judges, should solve the conflict.
"How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago," Orenstein wrote. "But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive."
Apple, backed by the tech industry, argues that the FBI's demands threaten the privacy and security rights of millions of iPhone users around the world. The company recently disclosed in the Brooklyn case that it has already received at least a dozen FBI requests to unlock iPhones since last fall and anticipates many more from the government if it loses in the courts.
Justice Department officials have downplayed Apple's security arguments, contending the government is seeking technical help to aid law enforcement in solving crimes and fighting terrorism that does not pose a wider threat to consumer privacy and digital security.
Both the New York and California cases center on whether the 1789 All Writs Act, a catch-all law that gives the courts power to order individuals or businesses to take action, provides the legal authority to compel Apple to create the tech needed to unlock an iPhone.
Orenstein specifically found that old law did not cover that power.Whatever Brodie decides, the case is expected to be appealed to the U.S. Second Circuit Court of Appeals.
The case may offer the courts an opportunity to address the legal questions, but could be outdated in terms of how it applies to the larger debate over encryption. The device in the Brooklyn case is an older iPhone model, and Apple has since tightened security protections further in newer iPhones such as the iPhone 6. The New York case also involves a security backdoor that, unlike the San Bernardino iPhone, would not require Apple to create an entirely new software security program.
Apple lawyers said Friday they would not ask the courts to force the FBI to disclose how it unlocked the iPhone in the San Bernardino case, stressing any security vulnerability would be quickly fixed by the company's ongoing encryption efforts.
©2016 the San Jose Mercury News (San Jose, Calif.) Distributed by Tribune Content Agency, LLC.
