Ahead of Apple v FBI, US government files appeal in NY iPhone unlocking case

The US government has appealed against a ruling by a New York magistrate who ordered that it cannot force Apple to unlock one of its iPhones as part of a drugs investigation in the city.

The move is part of a legal and public relations campaign by the Department of Justice to show that Apple has willingly assisted law enforcement in dozens of similar previous cases, and is therefore technically able to help gather evidence. Apple, claims the DoJ, has only recently begun arguing that it isn’t legally required to do so.

It’s also part of a broader chess game in numerous US courtrooms between America’s largest company and its government as each tries set a precedent on whether private companies can sell “warrant-proof” technologies, such as newer iPhones.

That clash will come to a head in southern California this month when Apple and the FBI meet in federal court to debate whether Apple should be required to weaken security settings on the iPhone of one of the San Bernardino shooters.

The government’s case there was dealt a potential setback when Magistrate Judge James Orenstein ruled against the government on 29 February in a different phone unlocking case.

The government seeks to undo that.

In its filing on 7 March, the government points to several cases, including one in 2008 – the iPhone’s second year on the market – in which Apple guided federal investigators on the type of language to use in its court order if it wanted the company to pull data from a locked phone. Apple technicians, with federal investigators at their side, complied, the filing said.

“Apple is not being asked to do anything it does not currently have the capability to do,” the company says in its filing. “This case in no way upends the balance between privacy and security.”

But Apple argues that the facts, technology and its understanding of the law have changed over time.

On a practical level, the government’s appeal in the Eastern District of New York may only determine whether the Justice Department can still force Apple to crack open older iPhones before modern security updates. In 2014, the company introduced a new operating system that made it impossible for the company to pull data from a locked device without the user’s passcode. The phone in the New York case wasn’t updated to the more secure software.

Meanwhile, Apple says it no longer wants to be in the business of serving as the middle man between law enforcement and its customers’ phones. Additionally, it is trying to head off the government’s increasing reliance on an old, vague law known as the All Writs Act as a way to facilitate surveillance. The statute, with origins in 1789, gives American courts broad authority to make sure their orders are fulfilled.

In the past, the government used All Writs against Apple to make them do something they technically could already do: pull data off a locked phone.

In the San Bernardino case, the government has persuaded a federal magistrate that Apple should be ordered to author software that would make it easier for the government to unlock newer, more secure phones. Apple is appealing.

Even some lawyers sympathetic to law enforcement – including Republican members of Congress, and attorneys for telecom giant ATT – say this may be granting the government too broad of an authority under All Writs. In a sense, they argue, the government could get a judge to force companies to remake their product any time it conflicts with an investigation.

Speaking of Orenstein’s previous ruling in Apple’s favor, the company said, “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.”

The government has asked a different judge in the eastern district to review the case.

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