Apple holds steadfast, refuses to help feds access seized iPhone in NY drug case

by Cyrus Farivar

Ptigarstheone

On Friday, Apple formally responded to the government’s demand that the company help unlock a seized iPhone in New York, which pre-dates the debacle that played out earlier this year in San Bernardino.

As Ars reported last month, federal prosecutors have asked a more senior judge, known as a district judge, to countermand a magistrate judge who earlier ruled in Apple’s favor, which is why Apple had to file now. In that ruling, US Magistrate Judge James Orenstein concluded that what the government was asking for went too far. In his ruling, he worried about a "virtually limitless expansion of the government's legal authority to surreptitiously intrude on personal privacy."

The case involves Jun Feng, a drug dealer who has already pleaded guilty, and his seized iPhone 5S running iOS 7. Prosecutors have said previously that the investigation was not over and that it still needed data from Feng's phone. As the government has reminded the court, Apple does have the ability to extract data from this phone. Moreover, as Department of Justice lawyers note, Apple has complied numerous times previously.

By contrast in San Bernardino, the government attempted to force Apple to write new software that would help the government brute force a seized iPhone that was used by dead terrorist Syed Rizwan Farook. Ultimately the government found an "outside source" who was able to get into the phone. It is unclear if anything useful to the investigation was contained on that phone. In both cases, however, the government sought the data under the authority of the All Writs Act, the obscure 18th-century law that allows courts to force people or companies to do things.
In this New York case, investigators have said they still need access to Feng’s phone for sentencing and for related cases. But Apple’s not buying it.
"The government has failed to show that it is has exhausted other potential repositories of the information it wants from Feng’s iPhone," Apple lawyer Theodore Boutrous wrote in the 55-page filing, which was very similar to the earlier filings in the San Bernardino case.
"The government says that it seeks to learn Feng’s customers and sources from the data on his iPhone, DE 30 at 8, but it has not shown, for example, whether it attempted to get this information by subpoenaing relevant records from Feng’s cell-phone service provider, or by obtaining a warrant under the [Stored Communications Act], 18 U.S.C. § 2703, for the contents of any accounts Feng owns, such as an Internet-based email service or a social-media service, or for text messages sent to and from his phone," he said. "Nor did the government seek an SCA order to obtain other potentially useful information from Apple. These records or others may obviate the purported need for Apple’s assistance to bypass Feng’s passcode."

Since 2014, Apple has taken a two-pronged approach when it comes to resisting government pressure. With iOS 8 and later versions of the software, the company has said that it can no longer access data stored locally on the phone. And, most notably in this case, even if it does have the ability to extract data, Apple is refusing to do so on legal grounds.