The US government wants Apple to unlock an old iPhone because the company has done it "many times before"—specifically "at least" 70 since 2008, according to a prosecutor.
Saritha Komatireddy, an Assistant US Attorney, made that argument during a hearing in Brooklyn on Monday. The hearing was called in regards to a drug case where the US government says it can't access the contents of a seized iPhone and is trying to compel Apple to unlock it, using an obscure 1789 gap-filling statute known as the All Writs Act.
In this case, the phone in question is an iPhone 5s running iOS 7, an older version of Apple's mobile operating system that does not use encryption by default, unlike the more recent iOS 8 and 9. The phone belongs to Jun Feng, an alleged meth dealer.
Komatireddy argued that Apple should help because it's been doing that since 2008, and since then it "has never objected" and "has complied" with "at least" 70 similar requests.
"[Apple] had an established procedure to routinely take any of these requests, comply with them, processing them," Komatireddy said, adding that the government's request in this case "did not ask Apple to create any capability that it did not already have. It was just a simple routine request for assistance following a search warrant issued by a federal court."
"Apple is saying it does not want to do this."
The prosecutor added that the number is an "estimate" based on a preliminary survey. Apple's lawyer Marc Zwillinger told reporters at the end of the hearing that that figure is the government's estimate, not Apple's. An Apple spokesperson declined to comment via email.
Apple has been fighting the government's request, and reiterated on Monday some of the points it already made in a previous court filing. The company's main argument, essentially, is that it should not be doing the government's work, and that if it did, it would undermine its customers' trust.
"Right now Apple is aware that customer data is under siege from a variety of different directions. Never has the privacy and security of customer data been as important as it is now," Zwillinger said, adding that that's the reason the company has made its newer operating systems encrypted by default, which "puts Apple in the position where it cannot do this."
"Apple is saying it does not want to do this. It does not want to be in the business of being a method by which customer data is disclosed," Zwillinger said.
The prosecutor shot back, arguing that "all we're asking for is technical assistance," and that "American consumers should expect that American companies protect their privacy and their safety."
The judge presiding over the case, Magistrate Judge James Orenstein, seemed skeptical of the government's arguments, grilling the prosecutor for more than an hour. The judge went as far as to question the need for Apple's assistance.
"What you're asking them to do is do work for you," Orenstein said.
The judge also questioned whether he should have the authority to decide on this issue, given that, perhaps, it should actually be Congress to weigh on how far tech companies should go to assist criminal investigations. Using the All Writs Act in this case, he argued, "takes away legislative authority from Congress and puts it squarely into the court."
"And this seems to be so at odds with the separation of powers that we have," he said.
"There's a dog that didn't bark here."
Orenstein also slammed the government for claiming that Apple is compelled to help also because it owns the phone's software, according to its End User License Agreement—an argument that the Electronic Frontier Foundation described as a stretch.
"This thing about the End User License Agreement struck me as a total red herring. I don't get it at all," Orenstein said.
The judge seemed skeptical of Apple's position as well, however, questioning why the company complied with older requests, but is fighting this one.
"There's a dog that didn't bark here," Orenstein said.
The prosecutors, as well as Apple, now have two days to send the judge more arguments. And Orenstein promised to get a decision on the case "as quickly as I can."