In court papers, Apple's lawyers revived their defense of the company's need to protect the security of iPhone users, accusing the FBI of seeking to force Apple to unlock an iPhone in a Brooklyn drug case solely to set precedent across the country that threatens its strong encryption in iPhones.
In addition, Apple maintains the Justice Department's request is dubious in view of recent events in the San Bernardino terror case, where the FBI initially insisted it needed Apple to unlock an attacker's iPhone only to abandon the bid when it secured outside help.
"The government's failure to substantiate the need for Apple's assistance, alone, provides more than sufficient grounds to deny the government's application," Apple lawyers wrote.
In a letter last week, U.S. prosecutors informed a federal judge in Brooklyn that the FBI still needs the Cupertino tech giant 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.
The Justice Department's position 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.
In its legal arguments, Apple notes that federal prosecutors have not demonstrated they need the company to unlock the iPhone of a convicted methamphetamine dealer awaiting sentencing, or proven they cannot use the kind of alternatives the FBI found in the San Bernardino case.
"The government's arguments in this case — much like the arguments advanced and then abandoned in the San Bernardino matter ... — confirm that the burden to Apple must be assessed not through the lens of a single phone or a specific operating system, but in light of the government's unambiguous intent to obtain a precedential ruling that can and will be used to support subsequent orders involving other iPhones running different operating systems and with a variety of security features," Apple argued.
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.
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.
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 technology 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.
©2016 the San Jose Mercury News (San Jose, Calif.) Distributed by Tribune Content Agency, LLC.
