After withdrawing its supposed one-off request for Apple to unlock an alleged terrorist's iPhone in California, the government says it will continue fighting Apple over a meth dealer's iPhone in New York.In 2014, Jun Feng was indicted on three counts of possession and distribution of methamphetamines. A full year later, the FBI sought a court order to compel Apple to bypass the lock screen on Feng's iPhone—a relatively routine request that, in a surprise twist, was denied by the judge.
The legal issues in the case are identical to the legal issues in a much more high-profile case in California over an iPhone owned by deceased San Bernardino shooter Syed Farook—can the government use the All Writs Act of 1789 to compel Apple to assist law enforcement in bypassing the security of its own devices?
According to a filing made on Friday by the Department of Justice, the government says it will pursue its appeal in the Eastern District of New York—even though on on March 28, it pulled out of its hotly contested battle with Apple in California.Although the case in New York is based on a similar legal question, the technical burden on Apple is very different. In the New York case, the iPhone in question is a 5s running iOS 7. If ordered to do so, Apple can easily bypass the lock screen, unlike the iPhone in the San Bernardino case, which would have required 10 to 12 full-time engineers four to six weeks to write specialized software to bypass Apple's security protections.In fact, in the New York case, an Apple liaison told the government that upon receipt of a court order, Apple would "schedule the extraction date within a 1-2 week time frame." But the government never received such a court order. When it sought a warrant, the judge on duty was Magistrate Judge James Orenstein, who is known for his resistance to government applications for warrants and other court orders. Orenstein, who is part of a larger movement known as the "magistrates' revolt," denied the government's application in a 50-page opinion. Shortly thereafter, the Department of Justice appealed his decision.
It casts doubt on the government's repeated claims that the San Bernardino case was about just one iPhone
The government has now explicitly stated that, despite pulling out of the San Bernardino case, it will still carry on the fight in New York. "The government does not intend to modify its March 7, 2016 application. The government's application is not moot and the government continues to require Apple's assistance in accessing the data that it is authorized to search by warrant," the DOJ stated in its filing.Attorneys for Apple said that the company also intends to fight out this case, saying that although Apple has always complied with lawful court orders, the company now contends that this kind of use of the All Writs Act is not lawful.Both cases are about how much the government can require private companies to do to assist law enforcement. In California, that meant setting aside an entire technical team to work on subverting Apple's own encryption. In California, however, the burden is much lighter—and the consequences for other iPhone users are much less dire.If Apple assists law enforcement in New York (where, incidentally, the defendant has already pled guilty and will be sentenced in May), there is no great and looming danger to the security of iPhones everywhere. But because it's easy for Apple to assist, it's also easier for the government to seek a solution through a private vendor—just as it did in the San Bernardino case, which was resolved after an unknown third party provided a way into the phone in question.Apple attorneys pointed out that because the New York iPhone is so different, and the facts of the case are so different, it casts doubt on the government's repeated claims that the San Bernardino case was about just one iPhone, rather than setting a legal precedent that would make it easy for the FBI and other law enforcement agencies to break into all kinds of devices with the help of manufacturers.The New York case doesn't pit technical security against the needs of law enforcement. It's all about whether the All Writs Act of 1789 is an appropriate legal tool for forcing tech companies to assist the government. With so many All Writs Act cases around smartphones pending across the country, the ultimate outcome of the legal battle in the Eastern District of New York could have far-reaching ramifications for the extent of government search and seizure in the digital age.