- Prosecutors tell federal judge magistrate's ruling was wrong
- Apple has extracted data `dozens of times before,' U.S. says
Apple Inc. agreed to unlock a drug dealer’s iPhone before abruptly changing course in October after a judge said he wanted more information from the company before issuing a warrant, federal prosecutors said.
Apple’s response was “the first time ever” it opposed the government on such a demand, the Justice Department said Monday in appealing the magistrate judge’s Feb. 29 decision that the company need not cooperate with the U.S.
“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 said 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 U.S. demand that it allow investigators to unlock 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 U.S. for months in Brooklyn, New York.
On Monday, prosecutors in Brooklyn said it was only Magistrate Judge James Orenstein’s reluctance to issue a warrant automatically 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 helped the government access data on at least 70 iPhones before it stopped cooperating, according to prosecutors. For phones using older operating systems, the company can extract data from locked devices at its headquarters, according to a guide it produced for law enforcement. Some technology enthusiasts object to using the term “unlock” for that process.
Last month, in response to the California judge’s order that Apple aid in the San Bernardino investigation, Chief Executive Officer Tim Cook said U.S. demands for iPhone access are a chilling attack on privacy. The rulings in Brooklyn and California may eventually reach the U.S. Supreme Court.
“Judge Orenstein ruled the FBI’s request would ‘thoroughly undermine fundamental principles of the Constitution’ and we agree,” Apple said Monday in a statement.
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 U.S. said.
In its filing Monday, the government focused 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 has routinely and easily accessed, 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 find data on pre-iOS 8 phones after receiving a search warrant. The next day, the government sought a warrant from 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 U.S. said. In refusing the government, 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 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 to work for a month writing new code. 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 gain access to the drug dealer’s data.
The case is In Re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant, 15-mc-1902, U.S. District Court, Eastern District of New York (Brooklyn).