- The Washington Times - Tuesday, March 8, 2016

The Justice Department on Monday asked a federal judge in Brooklyn to reverse a decision from last week in which the District Court said Apple shouldn’t be forced to unlock a drug dealer’s iPhone at the government’s request.

Separate but similar to the ongoing legal dispute in California surrounding an Apple iPhone owned by one of the individuals responsible for the December 2015 mass shooting in San Bernardino, the New York case concerns the government’s desire to access information stored on a smartphone owned by Jun Feng, a convicted meth dealer.

The government claims it is unable to scour Feng’s iPhone 5c running iOS 7 for evidence related to a broader narcotics investigation without triggering a function that automatically destroys all of the device’s data when an unauthorized person attempts to gain access.

Prosecutors asked Magistrate Judge James Orenstein in the Eastern District of New York last year to force Apple to provide assistance under the antiquated All Writs Act of 1789, but that request was rejected last week.

“Nothing in the government’s arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary,” the judge decided then.

In an appeal filed by the government on Monday this week, attorneys said the judge’s ruling “goes far afield of the circumstances of this case and sets forth an unprecedented limitation on federal courts’ authority.”

Apple has previously complied with similar requests, and their assistance is once again needed so that authorities can continue an ongoing narcotics conspiracy investigation, the government claims.

“In light of the debate that has recently come to surround this issue, it is worth briefly noting what this case is not about. Apple is not being asked to do anything it does not currently have the capability to do,” the government argued in its appeal. “All of Apple’s pre-iOS 8 operating systems allowed for extracting data from a passcode-locked device. Apple has used that capability dozens of times, in response to lawful court orders like the one sought here, with no claim that doing so put customer data or privacy in harm’s way. Apple may perform the passcode-bypass in its own lab, using its own technicians, just as it always has, without revealing to the government how it did so. Therefore, granting the application will not affect the technological security of any Apple iPhone nor hand the government a ‘master key.’ “

“This case in no way upends the balance between privacy and security. The Constitution has already struck the relevant balance: It protects the people’s privacy ‘in their persons, houses, papers and effects,’ but permits reasonable searches including ones where the government has a warrant. Here, the government has a warrant. And a longstanding federal statute provides this Court with the authority to require Apple to assist with that warrant,” prosecutors continued.

Apple responded to the appeal with a statement Monday applauding Judge Orenstein’s decision from last week.

“Judge Orenstein ruled the FBI’s request would ‘thoroughly undermine fundamental principles of the Constitution’ and we agree,” the company said. “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.”

Indeed, Apple is separately in the midst of litigating a case in California where the government has again evoked the All Writs Act in hopes of having the company create a mechanism that would allow investigators to access data on an iPhone 5c owned by Syed Farook, one of the San Bernardino shooters.

Internet companies including Facebook, Google and Microsoft have since filed briefs in support of Apple, and tech firms attest that requiring Apple to create new computer code to satisfy the government would set an alarming precedent and open up millions of devices to hackers by compromising security.

Farook and his wife, Tashfeen Malik, killed 14 people and injured 22 others when they want on a shooting rampage late last year, and investigators believe Farook’s iPhone may contain information about that plot and potentially others.

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