Bolstering Apple Argument, DOJ Wants Data from Dozen Other Phones
Suggesting slipper slope already exists, news reports show outcome of Apple-FBI battle could have wide implications for privacy and encryption
Contradicting FBI claims that the U.S. government is focused only on a single phone in the landmark privacy case pitting Apple against federal law enforcement, news outlets are reporting Tuesday that the Justice Department is pursuing court orders to force the tech company to help investigators extract data from iPhones in about a dozen undisclosed cases around the country.
The Wall Street Journal first reported the news Tuesday morning, citing "people familiar with the matter." According to the paper:
The other phones are at issue 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, these people said.
The specifics of the roughly dozen cases haven’t been disclosed publicly, but they don’t involve terrorism charges, these people said. 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.
But as The Verge points out, "With these cases already ongoing, it would be straightforward to compel Apple's assistance in these additional cases after the legal precedent has been set. It's unclear why the Department of Justice chose to push forward the San Bernardino order rather than one of the other thirteen cases detailed here, although it's likely that the high-profile nature of the case played a role in the decision."
Indeed, the ramifications could spread far beyond 12 individual smartphones, The Intercept's Jenna McLaughlin wrote on Monday.
"The FBI wants you to believe that its contentious court battle to force Apple to write new software that would let it hack San Bernardino killer Syed Farook’s iPhone is only about this one, specific, particularly heinous case," she said. "But the FBI’s defenders and friends in state and local law enforcement are going way off message. They say the ruling is going to have a huge impact on how they do business."
The Intercept reported:
In Suffolk County, Massachusetts, district attorney’s office spokesperson Jake Wark said prosecutors “can’t rule out” bringing their own case of a locked cellphone before a judge, too. “It may be a question of finding the right case,” he told the Wall Street Journal.
“It’s going to have significant ramifications on us locally,” Matt Rokus, deputy chief of Wisconsin’s Eau Claire Police Department, told the city’s Leader-Telegram newspaper on Monday.
In South Dakota, Minnehaha County State’s Attorney Aaron McGowan told the Sioux Falls Argus Leader that “the court’s ruling could have a significant impact on conducting sensitive criminal investigations.”
This is in line with Apple's claim over the past week, that the outcome of this legal tussle could have "implications far beyond the legal case at hand."
Meanwhile, the Justice Department said in a court filing late Monday that Apple has, after years of complying with court orders based on the 1789 All Writs Act, suddenly changed its legal position.
The filing came in a Brooklyn case involving a methamphetamine dealer. The Drug Enforcement Administration (DEA) sought Apple's help to break into a phone owned by the suspect, Jun Feng, saying that despite a guilty plea by Feng, it still needed access to the phone data as part of an ongoing investigation.
Instead of approving the DEA's request to order Apple to help break into Feng's phone, as other judges routinely have done in other cases, U.S. Magistrate Judge James Orenstein asked Apple to weigh in—becoming the first to raise doubts about whether the All Writs Act applied to Apple.
"Apple jumped at the opening provided by Judge Orenstein," CNN reports—and as such, "the seeds of the government's fight with Apple were sown in the Brooklyn courtroom."
"The cases are different, but the underlying legal question is very similar," Alex Abdo, a lawyer with the American Civil Liberties Union, told NPR. "The question in the New York case is whether the government can rely on this very old statute to conscript Apple into government service."
As NPR explains, there are some key differences between the two cases, in particular that Feng's iPhone was using an older operating system, iOS 7, which makes it relatively easy for Apple to bypass the lock. The iPhone in the San Bernardino case is running Apple's newer operating system, iOS 9, and the company says it would have to create software just to get into the phone.
That reflects a conscious shift on Apple's part, Abdo argued. "They didn't want to be in the position, they told the court, of having to serve as a government investigative agent," he said. "They wanted to be out of the business of spying on their customers."
As Apple CEO Tim Cook wrote in an email to staff on Monday: "Some advocates of the government’s order want us to roll back data protections to iOS 7, which we released in September 2013. Starting with iOS 8, we began encrypting data in a way that not even the iPhone itself can read without the user's passcode, so if it is lost or stolen, our personal data, conversations, financial and health information are far more secure. We all know that turning back the clock on that progress would be a terrible idea."