Apple, DOJ Spar Over Another iPhone in Brooklyn


Apple on Friday argued that the government has “utterly failed” to show that the tech giant is the only party that can crack a drug dealer’s locked iPhone in a closely watched legal battle in Brooklyn.

In a new filing, Apple invoked the Justice Department’s handling of the high-profile San Benardino, California, case, in which prosecutors initially insisted that only Apple could help the FBI access a phone used by one of the shooters.

Then on the eve of oral arguments last month, prosecutors abruptly announced that an “outside party” had shown the bureau a possible method to unlock the phone.

In the Brooklyn case, prosecutors have similarly asserted that Apple is the “only entity” that can pull data from the iPhone, the firm’s lawyers said in their brief. But the tech firm said “the government has failed to demonstrate it has conducted an ‘exhaustive search’ for alternative option.”

The case began last fall after the government wanted Apple to help pull data from a locked iPhone used by a Brooklyn drug dealer. What began as a routine demand became a legal battle when U.S. Magistrate Judge James Orenstein challenged the government’s argument, which relied on a 1789 law, the All Writs Act.

The case took on even greater significance in February when the government launched another fight with Apple in court over the San Bernardino phone, citing the same obscure, Colonial-era law.

In its Friday filing, Apple said the San Bernardino case demonstrated “that the government’s knowledge of its own capabilities and those available in the marketplace was lacking.”

The Justice Department has argued that unlike the phone in the San Bernardino case, the Brooklyn phone is an older model of the sort that Apple has pulled data from before when served with a court order – and has done so without objection.

“As we have made clear in our previous filings, Apple expressly agreed to assist the government in accessing the data on this iPhone – as it has at least 70 times before in similar circumstances,” department spokeswoman Emily Pierce said in a statement.

Apple has said before that it would take them only a few hours to open the phone, Pierce added.

Orenstein in February sided with Apple, saying the law did not authorize him to direct the firm to help the government.

In the San Benardino case, the magistrate judge never got to rule on the issue because the government withdrew its order after it was able to get into the phone.

In its Brooklyn brief, Apple also argues that the government’s request should be rejected because of the “likely minimal” evidence that could be found on the phone. All defendants in the case have pleaded guilty, and the phone was seized and last used almost two years ago.

It further said the government has made “no serious attempt” to obtain the phone’s PIN from the drug dealer and that it has not consulted other government agencies and third parties that might be able to help.

The firm also argued that the government has not shown that it has tried the method that worked on the San Bernardino phone on the Brooklyn device. The FBI has said that the solution used on the terrorist’s phone will work only on a narrow set of devices.

(c) 2016, The Washington Post · Ellen Nakashima