The Apple/U.S. government legal fight over encryption has resumed. A federal judge has ordered the company to assist the FBI in unlocking an iPhone in a case separate from the San Bernardino, Calif. terror attack that instigated the first round of this legal battle, according to Yahoo News.
The Justice Department is asking Apple to help unlock a phone in a New York drug case. The government dropped its legal action in the San Bernardino case after announcing it unlocked the iPhone with the help of an “outside party.”
Legal Questions Remain
The new action shows that questions remain about the amount of access law enforcement should have to encrypted devices and the proper balance between user privacy rights and security needs.
On Friday, a federal judge in Boston, Mass. ordered Apple to help law enforcement unlock data from an iPhone used by an alleged gang member, according to documents provided by the American Civil Liberties Union.
Apple has challenged the court order and said it could not unlock the phone because it has iOS 9 software that includes updated security features.
The Justice Department told U.S. District Court Judge Margo Brodie that the government continues to need Apple’s assistance in gaining the data.
Lawyers for Apple said the order is an effort to establish a troubling precedent and is not a search for information in fighting crime.
Accused Criminal Has Confessed
The accused drug dealer in the New York case confessed to the crime and is scheduled for sentencing, Apple attorneys said. The government is nonetheless asking the company to help extract data from a phone.
In the San Bernardino case, the government ordered Apple to develop a new tool to circumvent the security system of the phone.
Apple plans to ask the court to determine if it has done everything it can without the company’s help and will keep arguing the request is not supported by law.
The FBI and the U.S. Drug Enforcement Agency sought to force Apple to assist in the effort to unlock the iPhone that was confiscated in June 2014 from the suspected drug dealer. The government sought Apple’s help under the 1789 All Writs Act, which grants law enforcement latitude. The government cited the same law in the San Bernardino case.
Prior Ruling Supported Apple
A judge in New York earlier this year ruled the government did not have the authority to force the company to comply with the order. U.S. Magistrate Judge James Orenstein wrote that the relief the government sought was not available since Congress has considered legislation to provide the same result but did not adopt it.
On Friday, Apple maintained its stance that the government tried to exceed its authority, and that lawmakers have to decide the degree to which third parties can be forced to assist the government.
Congress is expected to consider legislation to compel technology companies to retain “keys” to access data in a criminal investigation with a court order.
Activists and technology companies have opposed encryption rules that permit “special access” to law enforcement, claiming that repressive governments and hackers could exploit such vulnerabilities and undermine the security of trade secrets, electronic commerce, banking and more.
Why Apple’s Help Is Still Needed
A Justice Department spokesperson said the technological solution used in the San Bernardino case will not work in the New York case since the phone has a different operating system, according to The New York Times.
Apple’s lawyers said they questioned the FBI’s claims that it cannot use the San Bernardino method to unlock the New York phone. Apple has cooperated with requests to unlock phones in the past, but changed its stance last year, saying the requests can cause reputational harm as it promotes its security.
Justice Department lawyers said Apple’s past cooperation supports compelling the company to unlock the New York phone.
Former prosecutor James DeMarco said Apple’s past cooperation alone will not be enough to overturn Judge Orenstein’s ruling.
An Apple lawyer said Friday the company decided not to seek legal action to find out how the FBI unlocked the San Bernardino phone, partly since the company’s regular updates would give the method a short shelf life.
Apple Questions Government’s Motives
Apple lawyers said they plan to argue that the San Bernardino phone had a new operating system that was harder to unlock than the New York phone. The company will ask why the government cannot go to the same technical marketplace that assisted in unlocking the San Bernardino phone.
The Senate Intelligence Committee is currently drafting a bill to force companies to provide technical assistance to law enforcement in such cases, according to The Hill, a newspaper that covers government.
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