The Cable

DOJ Reopens Fight With Apple Over iPhone Access

The Justice Department wants access to the iPhone 5s belonging to a methamphetamine dealer.

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Thought the legal battle between Apple and the Justice Department over accessing iPhone data was put to rest? Think again: On Friday, U.S. prosecutors informed a federal court in Brooklyn they intend to move forward with their appeal in yet another case seeking iPhone data.

In February, U.S. Magistrate Judge James Orenstein ruled against the government in the case of a methamphetamine dealer suspected of working in a broader drug distribution network. Orenstein said the Justice Department had overstepped its authority in relying on the All Writs Act, a 1789 law, to force Apple to help the government to pull data from an iPhone 5s.

The defendant, Jun Feng, pleaded guilty last year, but the dispute over accessing his phone data rolls on.

Orenstein’s sweeping opinion argued the government’s pursuit of iPhone data possibly violated the Constitution. The use of the All Writs Act, Orenstein wrote, undermines “the more general protection against tyranny that the Founders believed required the careful separation of governmental powers.”

On the heels of that ruling, the government said it would appeal. But the case was put on hold during a separate but related legal dispute — whether Apple should be forced to bypass security features of an iPhone 5c belonging to one of the San Bernardino shooters and turn over its contents to authorities.

The case ignited a national debate over the limits of individual privacy and the government’s ability to access phones that now store highly sensitive, personal data. The government argues accessing data stored on such devices is essential to criminal and terrorism investigations; tech companies argue designing such devices with strong encryption technology is essential in an era when data theft is rampant.

Initially, the Justice Department secured a court order to force Apple to cooperate in the San Bernardino case after officials described it as a national security necessity. Apple vociferously objected. A day before the two parties were set to argue that case before Magistrate Judge Sheri Pym, the Justice Department abruptly backed off, saying a third party had come forward with a method for hacking the phone.

This week, FBI Director James Comey said the method used to access the San Bernardino gunman’s phone did not work on newer phones, such as the iPhone 5s in the meth dealer’s case in New York. And so prosecutors in the Eastern District of New York have decided to move forward with their appeal.

Apple has already helped open an estimated 70 phones for the government, but is resisting doing so for encrypted technology in about a dozen legal cases.

The Brooklyn case differs slightly from the one in San Bernardino in a key way: The New York phone does not carry the more advanced encryption features introduced with more recent operating systems.

A senior law enforcement official told reporters Friday that Apple has already acknowledged in court that it can pull data in phone like the one in Brooklyn.

“The big difference here is that we do know of an outside party, a party outside of government, that has a tool to be able to extract data from this particular phone, in a very short order, and that party is Apple,” the law enforcement official said, who spoke on condition of anonymity.

In its own conference call with reporters, Apple attorneys who also refused to be identified argued Friday that what the Justice Department really wants is a legal precedent to give the government sweeping powers to access encrypted data.

Noting that the FBI reversed itself in the San Bernardino case, Apple officials said it will ask the Justice Department to reveal what it has already done to access the New York phone — and whether there may be ways of doing so that do not require the Silicon Valley giant’s compelled help.

The FBI has not revealed how it pulled data from the phone of San Bernardino gunman Syed Rizwan Farook, and Apple attorneys said Friday they will not demand an explanation in court.

Justin Sullivan/Getty Images

Elias Groll is a staff writer at Foreign Policy covering cyberspace, its conflicts, and controversies. @eliasgroll

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