4 March 2016, NYT: Apple Is Rolling Up Backers in iPhone Privacy Fight Against F.B.I.
3 March 2016, Apple: Amicus Briefs in Support of Apple
MARCH 7, 2016
Justice Dept. Appeals Ruling in Apple iPhone Case in Brooklyn
By ERIC LICHTBLAU and JOSEPH GOLDSTEIN
WASHINGTON -- In the latest volley in its high-profile fight with Apple, the Justice Department said on Monday that a federal judge in Brooklyn had erred last week in refusing to order the company to unlock a drug dealer's iPhone.
"Apple is not being asked to do anything it does not currently have the capability to do," Justice Department prosecutors said as they appealed the decision made last week by Magistrate Judge James Orenstein of Federal District Court for the Eastern District of New York.
The prosecutors argued that their demand for technical help was a routine law enforcement request -- no different from the "dozens" of times that Apple had agreed to cooperate in cases before this one -- and that it "in no way upends the balance between privacy and security."
Lawyers and analysts on both sides of the encryption debate are watching the Brooklyn case closely because they believe it could foreshadow the ultimate outcome of the case involving an iPhone used by one of the attackers in the December terrorist rampage in San Bernardino, Calif.
The two cases are very different in some ways -- one involves a high-level terrorism investigation, the other an inquiry into a low-level drug dealer -- but both center on whether the Justice Department can use a 1789 statute to force Apple to unlock an iPhone.
Unlocking the iPhone in the Brooklyn case would be far easier for Apple, because it involves a device running an older operating system with simpler encryption.
In the San Bernardino case, Apple lawyers say the company would have to create an entirely new program to get into the iPhone used by Syed Rizwan Farook, who along with his wife killed 14 people. That phone was running the latest operating system.
The San Bernardino case offers prosecutors what they believe is a strong test case to establish the government's power to force a technology company to unlock its own encryption.
Among the factors they cite: The California rampage was the biggest terrorist attack on American soil since Sept. 11, 2001; Mr. Farook is dead; and the phone was owned by his employer -- San Bernardino County, where he worked as an environmental health specialist.
"The government certainly believes they have a very strong set of facts in San Bernardino," said Eric A. Berg, a former Justice Department lawyer who now works on electronic surveillance issues at a Milwaukee law firm. The Brooklyn case, on the other hand, "muddies the waters for them in what they're trying to do."
In his ruling last week, Judge Orenstein expressed concern that the government was claiming almost limitless authority to compel Apple to cooperate with law enforcement requests. And he noted that while Apple had declined to help the Justice Department unlock this specific phone, "Apple is not doing anything to keep law enforcement agents from conducting their investigation."
But prosecutors, in their appeal on Monday, claimed that Apple was in fact getting in the way by installing certain features on its products. "Apple's software is actively impeding the execution of the search warrant in several ways," the filing said, adding that Apple's auto-erase feature, which can wipe the device clean if the passcode is entered incorrectly 10 times, "is the technological equivalent to barring the door."
The prosecutors' brief did not address all of Judge Orenstein's concerns about government overreach, saying that such worries "go far afield of the present case."
"Much of Judge Orenstein's reasoning appears to be driven by a forward-looking concern for preventing future government abuse," the brief said. Supreme Court precedent on the matter, it added, prohibits judges from "using speculation about future harm as a basis to bar relief in a specific case."
Apple and its supporters argue that forcing the company to create what they say is a "back door" around its own encryption controls would set a dangerous precedent and threaten the security of hundreds of millions of users. In an unusual show of support, some 40 companies and organizations have filed [1] briefs in support of Apple's position.
Apple, in a statement following the Justice Department's appeal, said that "we share the judge's concern that misuse of the All Writs Act" -- the law prosecutors are citing in their demand -- "would start us down a slippery slope that threatens everyone's safety and privacy."
Timothy H. Edgar, a civil liberties specialist, said that the outcome of the Justice Department's demands on Apple might ultimately hinge on whether the courts view the "burden" placed on Apple as unreasonable.
If the courts look at that burden as simply the number of engineering hours it might take Apple to unlock the phones, the Justice Department has a strong case, he said. But if that burden includes diminished security or possible harm to Apple's reputation among its customers, the outcome might be different.
Michael Sussmann, a Washington lawyer and former Justice Department prosecutor who works on electronic surveillance cases, said he thought it was doubtful that the Supreme Court would step into the fray anytime soon, unless rulings that emerge from New York and California appellate courts are in direct conflict.
In cases involving new technology, he said, "The Supreme Court likes these cases to percolate in the lower courts for a while and let the law be made and observe how it's made before stepping in."
Eric Lichtblau reported from Washington, and Joseph Goldstein from New York.
[1] http://www.nytimes.com/2016/03/04/technology/apple-support-court-briefs-fbi.html