Calling a York judge’s ruling “an
unprecedented limitation” on judicial
authority, the Justice Department has asked
a Brooklyn federal court to reverse a decision
that said Apple Inc. wasn’t required to pry
open a locked iPhone. The government’s 45-page brief comes a week
after U.S. Magistrate Judge James Orenstein
issued his decision in a routine drug case,
dealing a blow to the Obama administration in
its battle with the tech giant over privacy and
public safety. Lawyers for the Justice Department called their
Monday request routine, arguing that the case
is not about asking Apple to do anything new,
or to create a “master key” to access all iPhones.
Apple has opposed the government’s move in a
separate case involving the shooter who killed
14 people Dec. 2 in San Bernardino, California. Apples
pushback has fueled a national
debate over digital privacy rights and national
security. Apple had previously assailed the
government’s move, saying U.S. officials were seeking “dangerous power” through the courts and trampling on the company’s
constitutional rights. The Brooklyn case involves a government
request that is less onerous for Apple and its
phone technology. The so-called extraction
technique works on an older iPhone operating
system and has been used dozens of times
before to assist investigators.
The California and New York cases both hinge
on the government’s interpretation of the
centuries-old All Writs Act. The new cases
present another challenge for federal courts,
which have to sort out how a law that is used to
help government investigators square privacy
and encryption in the digital age. The government asserted in court papers
Monday that Orenstein’s ruling in New York is “an unprecedented limitation on” judicial
authority and that his legal “analysis goes far
a eld of the circumstances of this case.” It also
stated that the government “does not have any
adequate alternatives” to obtaining Apple’s
assistance because attempting to guess the
passcode would trigger the phone’s auto-erase
security feature. Federal prosecutors cited several examples in which Apple has extracted data from a
locked device under the law, including a child
exploitation case in New York, a narcotics case
in Florida and another exploitation case in
Washington state.
Apple responded Monday: “Judge Orenstein
ruled the FBI’s request would ‘thoroughly
undermine fundamental principles of the
Constitution’ and we agree. 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.” In October, Orenstein invited Apple to
challenge the government’s use of the 1789
law that compelled the company to help the
government obtain iPhone data in criminal
cases. Since then, lawyers say Apple has
opposed requests to help extract information
from over a dozen iPhones in California, Illinois,
Massachusetts and New York.
In the California case, officials are looking for
access to the phone used by Syed Farook but
owned by San Bernardino County, where he was
a health inspector. Federal investigators say the
attack by Farook and his wife, Tashfeen Malik, was
at least partly inspired by the Islamic State group.
The couple died later in a gun battle with police. FBI Director James Comey told a House judiciary
panel last week that the government was “asking
Apple to take the vicious guard dog away and let us pick the lock” on the iPhone. Should Apple
create the specialized software to allow the FBI to
hack the iPhone in California, Comey said it would
take 26 minutes to do what’s known as a brute
force attack - testing multiple passcodes in quick,
computational succession. Apple has said that being forced to extract
information from an iPhone, no matter the
circumstance, “could threaten the trust between
Apple and its customers and substantially
tarnish the Apple brand.”
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