MARK BERMAN AND ELLEN NAKASHIMA
THE WASHINGTON POST
WASHINGTON – The Justice Department said Friday that it still wants to force Apple to help it unlock an iPhone in a drug case in New York, the latest volley in an ongoing debate over encryption between federal authorities and technology firms.
This filing came two days after the FBI’s director suggested that the government’s secret method for cracking an iPhone used by one of the San Bernardino attackers — the center of a weeks-long dispute between the Justice Department and Apple — would not work on the New York phone or several other models.
Federal prosecutors wrote in a three-sentence filing Friday in the Eastern District of New York that the government has no intention of changing its stance in the New York case and that it “continues to require Apple’s assistance in accessing the data” on the phone.
“As the FBI director recently indicated, the mechanism used in the San Bernardino case can only be used on a narrow category of phones,” Justice Department spokeswoman Emily Pierce said. “In this case, we still need Apple’s help in accessing the data, which they have done with little effort in at least 70 other cases when presented with court orders for comparable phones running iOS 7 or earlier operating systems.”
A federal judge in New York ruled against the government earlier this year, finding that that the All Writs Act from 1789 could not be used as the basis for a court order forcing Apple to help authorities lift data off an iPhone. The Justice Department appealed that ruling last month.
While the case in New York was overshadowed in the public eye by the California situation that dominated headlines in recent weeks, it has taken on a particular importance amid an ongoing debate over balancing privacy and security in the digital age.
The iPhone 5S in New York belonged to a drug dealer who has pleaded guilty to intending to distribute methamphetamines. Apple has helped authorities unlock this model of phone or access data on type of phone about 70 times in the past, according to government officials, and the company had previously told magistrate judge James Orenstein in Brooklyn that if it was ordered provide assistance with the drug dealer’s phone, it would comply.
Earlier this week, FBI Director James B. Comey said that the government’s method for unlocking the iPhone 5C belonging to Syed Rizwan Farook — who, with his wife, killed 14 people in a Dec. 2 terrorist attack in San Bernardino, California — would only work on a “narrow slice” of devices.
Comey said that the government’s tool would not work on an iPhone 5S or iPhone 6.
Apple and the Justice Department had fought over Farook’s iPhone after the government sought a court order directing the tech company to write new software to sidestep a feature wiping a phone’s data after 10 incorrect password attempts.
Last week, the Justice Department said that with an unnamed third party’s help, it had accessed the phone’s data and no longer needed Apple’s help. Authorities have not identified this third party, nor have they revealed how they accessed the phone.
Comey said authorities are still weighing whether to tell Apple how they unlocked the phone, noting in a discussion Wednesday at Kenyon College that once they tell Apple, “they’re going to fix it and then we’re back where we started from.”
This legislation says a company can design what they want their back door to look like, but it would definitely require them to build a back door. For the first time in America, companies who want to provide their customers with stronger security would not have that choice — they would be required to decide how to weaken their products to make you less safe.”
-Sen. Ron Wyden, D-Oregon
Apple had told authorities it could get data off the New York phone in “a matter of hours,” said a law enforcement official, who spoke to reporters on a conference call conducted on the condition of anonymity.
Attorneys for Apple, speaking in their own conference call with reporters also conducted on the condition of anonymity, said they were disappointed but not surprised that the federal government is still pushing for the company’s help in the New York case.
This case differs from San Bernardino because instead of being asked to write new software to sidestep the iPhone’s security, Apple is being asked to extract data from a phone, the attorneys said.
These attorneys also questioned whether Apple’s help was really needed in the New York case. They pointed out that the Justice Department repeatedly argued that only Apple could help it access the San Bernardino phone before reversing course at the last minute and said it was fair to wonder whether the FBI had tried every possible other avenue before trying to force Apple to help.
The tech company has until next week to file its response to the appeal.
Even as the fight continued in court, some U.S. lawmakers have been preparing legislation to break the impasse. Sens. Richard Burr, R-North Carolina, and Dianne Feinstein, D-California, have written a bill that would force U.S. companies to provide data or communications in plain text to the government if served with a court order, according to a draft obtained by The Hill.
The bill has not been introduced, but it is already prompting criticism from some quarters.
“This legislation says a company can design what they want their back door to look like, but it would definitely require them to build a back door,” said Sen. Ron Wyden, D-Oregon. “For the first time in America, companies who want to provide their customers with stronger security would not have that choice — they would be required to decide how to weaken their products to make you less safe.”
Even if legislation is introduced, administration officials privately are skeptical it will go anywhere this year given the presidential campaign and tight legislative calendar. Also, the bill is likely to face opposition — especially in the House.
Rep. Adam B. Schiff (California), the ranking Democrat on the House Intelligence Committee, said Friday that a draft of a Senate bill on encryption “will surely trigger an intensified discussion and debate” around the topic.
“The policy implications of encryption — on privacy, public safety, the economy and individual freedom — are far too significant to be left to courts, and must ultimately be decided by the people, through their representatives in Congress and in the administration,” Schiff said in a statement.
Even if legislation is introduced, administration officials privately are skeptical it will go anywhere this year given the presidential campaign and tight legislative calendar. The discussion draft of the bill that was circulating already prompted some lawmakers to issue statements of concern — Wyden said it would force companies “to decide how to weaken their products to make you less safe” — and it is likely to face stiff opposition in the House.
