On Friday, the Justice Department renewed its efforts in a Brooklyn court to force Apple to help break into a drug trafficker’s iPhone, a move that Apple believes is just another attempt to establish a legal precedent that would make such demands on tech companies easier in the future.
The DOJ said in its filing that it “continues to require Apple’s assistance in accessing the data” from the iPhone of Jun Feng, a convicted methamphetamine trafficker.
An Apple attorney said Friday the company is disappointed that the government is doubling down on its request, even after the judge in the case, U.S. Magistrate Judge James Orenstein, decided that its reliance on the antiquated All Writs Act to compel Apple in the matter was an overreach. Apple attorneys regard the government’s filing with the court Friday as an “appeal.”
Apple has said that it indeed has the capability to extract the encrypted data from the Feng phone, but filed a motion with the court in October refusing to do so.
Apple has said that the creation of even one “back door” to encrypted data on an iPhone would weaken the security of millions of iPhones if it ever fell into the wrong hands. But Apple’s main concern may be that compliance with one court order demanding the creation of a custom OS (back door) would naturally lead to many more, in all kinds of cases.
The Feng case is an unwanted reprise of a very similar case where the FBI won an order from a California federal court demanding that Apple help it break into the iPhone of San Bernardino shooter Syed Farook’s iPhone. In that case the FBI wanted Apple to build a custom OS that would disable security features on the phone so that a brute-force attack could be used to guess the encryption passcode. The government said it hoped to find data that might link Farook with terror groups in the Middle East.
Apple refused to help. The FBI later abandoned the court order just 22 hours before the court was to review the case after six weeks of intense and very public legal wrangling between the two parties. The government said a “third party” had come forward with a way to access Farook’s iPhone without Apple’s assistance.
Apple says the Justice Department’s renewed effort in the Brooklyn case proves that its demand in the San Bernardino case was never about just one phone, as FBI director James Comey had said, or that it was ever about preventing terrorism.
Documents unsealed by Judge Orenstein in the same Brooklyn case show that the FBI has requested that Apple create a “back door” to encrypted data on iPhones at least nine times, and possibly as many as 17 times, since last October.
Without actually accusing the government, Apple lead attorney Bruce Sewell implied repeatedly that the government is playing a political game, using federal district courts as a tool to establish a legal precedent for using the All Writs Apple to make tech companies reveal their customers’ encrypted data upon request of the government. Apple will file another motion with the Brooklyn court refusing to assist the government in the case.
Apple attorneys are likely to make two main arguments in the motion. First, it will raise the possibility that the government hasn’t fully explored its options for breaking into the Jun Feng phone without Apple’s help. Second, it will argue that the government is using the All Writs Act in a way it was never meant to be used, and will cite Judge Orenstein’s own exhaustive examination of that question and the fact that he reached the same conclusion.
Here’s a timeline of the Apple-FBI saga: