Unsealed court documents revealed Tuesday that the U.S. government is trying to compel Apple to extract data from its products in at least a dozen undisclosed cases.
The revelation comes after the company publicly refused to override the privacy system in an iPhone 5c that belonged to a shooter in the San Bernardino, California, terrorist case.
Devlin Barrett of The Wall Street Journal had the day’s news:
The Justice Department is pursuing court orders to make Apple Inc. help investigators extract data from iPhones in about a dozen undisclosed cases around the country, in disputes similar to the current battle over a terrorist’s locked phone, according to a newly-unsealed court document.
The other phones are evidence in cases where prosecutors have sought, as in the San Bernardino, Calif., terror case, to use an 18th-century law called the All Writs Act to compel the company to help them bypass the passcode security feature of phones that may hold evidence, according to a letter from Apple which was unsealed in Brooklyn federal court Tuesday.
The letter, written last week from an Apple lawyer to a federal judge, lists the locations of those phone cases: Four in Illinois, three in New York, two in California, two in Ohio, and one in Massachusetts.
The letter doesn’t describe the specific types of criminal investigations related to those phones, but people familiar with them said they don’t involve terrorism cases. The 12 cases remain in a kind of limbo amid the bigger, more confrontational legal duel between the government and the company over an iPhone seized in the terror case in California, these people said.
Eric Lichtblau and Joseph Goldstein of The New York Times explained how this development was revealed:
The existence of the other demands came to light in a drug-trafficking case in Federal District Court in Brooklyn, where prosecutors are seeking access to the data held in an iPhone linked to a methamphetamine distribution ring.
The owner of the phone, Jun Feng, 45, has pleaded guilty to conspiracy in the case. But prosecutors have pushed ahead anyway with their efforts to force Apple to unlock his phone, in part because they maintain that it could lead them to other drug suspects.
The two sides are awaiting a ruling from Magistrate Judge James Orenstein on whether Apple should be forced to cooperate. Before issuing a ruling, Judge Orenstein wanted Apple to detail other pending requests from prosecutors.
The Brooklyn drug-trafficking case has been dwarfed by the fight in California. But national security lawyers say the Brooklyn case remains important, because Judge Orenstein’s decision is expected to be the first to offer a broad examination of the government’s authority under the All Writs Act to force Apple to unlock passcode-protected iPhones.
The judge has indicated skepticism over the government’s demands. Initially, Apple agreed to a formal order to help the Justice Department gain access to Mr. Feng’s phone, but Judge Orenstein balked, questioning whether the All Writs Act could be used that way. He invited Apple’s lawyers to raise objections.
While his ultimate decision will not be legally binding in California, it could influence the legal arguments there. And an appeal by either side has the potential to work its way through the federal court system to become significant case law.
Robert Hackett of Fortune detailed what additional devices the government wanted Apple’s help in unlocking were:
According to the filing, the federal government has sought access to data on hardware including an iPhone 3, an iPhone 6 Plus, and even a relatively elderly iPad 2 that used software ranging from iOS 4.2.1 to iOS 9.1. The prosecutors in these cases have all based their authority on the All Writs Act, a law first enacted in 1789, on which the San Bernardino case also rests.
Apple objected to assisting the FBI in all the cases, except two outstanding ones in which the company said it is awaiting a new warrant and a copy of a ruling. Four of the cases arose in Illinois, three in New York, two in Ohio, two in California, and one in Massachusetts. (Some involve multiple devices.)
Unlike the high profile San Bernardino case, the other investigations are apparently not terrorism-related, the Wall Street Journal reports, citing unnamed sources.
In a post on the national security blog Lawfare, FBI director James Comey insisted that the San Bernardino case “isn’t about trying to set a precedent or send any kind of message.” Apple CEO Tim Cook, however, has disagreed, writing in a letter to customers that the outcome of this particular case will have “implications far beyond the legal case at hand.”
If compelled to help undermine the security features on the phone in the San Bernardino case, Apple fears it may lose legal ground in resisting to do so in other investigations.
