- The Washington Times - Friday, April 8, 2016

The FBI may have found a way into the iPhone used by one of the San Bernardino attackers without the help of Apple, but it’s not giving up a fight to compel the tech company to help it access data on a cellphone that belonged to a convicted New York drug trafficker.

In a document filed in federal court Friday, Justice Department attorneys wrote that they will continue to seek a court order that would force Apple to help investigators gain access to the locked iPhone from the Brooklyn case.

“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,” prosecutors wrote in a letter to U.S. District Judge Margo K. Brodie.

Notice by the FBI that it still requires help accessing an iPhone that belonged to Jun Feng, who pleaded guilty to drug conspiracy charges last year, comes after the bureau received outside assistance from a third party that helped it extract data from an iPhone used by San Bernardino attacker Syed Rizwan Farook. The move seems to indicate that the battle between the FBI and Apple over encryption is far from over.

The FBI had sought to force Apple to aid it in hacking the phone that belonged to Farook, who, along with his wife, was killed by police after the pair fatally shot 14 people and injured 21 others in San Bernardino, California, in December. But after the third party provided a way into the phone, the Justice Department abandoned the legal matter.

FBI Director James B. Comey said this week in a speech at Kenyon College that the tool investigators bought from the third party would only work on a specific model of phone, the iPhone 5C.

“We have a tool that works on a narrow slice of phones,” Mr. Comey said.

Friday’s court filings in the case of Feng, who had an iPhone 5S, seems to underscore the limited feasibility of the new tool.

A magistrate judge already has ruled in the Brooklyn case that the government didn’t have the authority to force Apple to provide aid in hacking the iPhone. The Justice Department has asked another federal judge to review the decision.

As federal authorities seek a legal remedy to this standoff, law enforcement officials across the country have disclosed that they possess numerous cellphones that investigators have been unable to access due to encryption security protections.

Lawmakers have expressed an interest in devising a legislative solution to the issue as well. A copy of a draft Senate bill leaked Thursday would require companies to provide data sought by the government in “an intelligible format” or to provide “technical assistance as is necessary to obtain such information or data” when served with a court order.

The details of the bill are still being worked out, according to a joint statement issued Friday by the authors, Sens. Richard Burr and Dianne Feinstein.

“The underlying goal is simple: when there’s a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out. No individual or company is above the law,” the statement reads. “We’re still in the process of soliciting input from stakeholders and hope to have final language ready soon.”

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