Stoking encryption debate, US officials press Apple to unlock another iPhone

Despite dropping a case over the San Bernardino, Calif., iPhone, the Justice Department wants Apple's help in a similar New York case. Its pursuit of the case comes as lawmakers weigh a bill to force companies to help investigators retrieve data.

The Department of Justice plans to keep pushing Apple to unlock an iPhone that's part of a New York criminal probe even though it dropped a similar case against the tech giant while investigating the San Bernardino, Calif., terror attack.

A senior US law enforcement official said Friday that what the government is asking Apple in the New York investigation isn't any different than what the company has done dozens of other times to aid investigators in the past.

Unlike the case that surrounded the iPhone 5C used by the San Bernardino shooter, which sparked a national debate over the proper boundaries of government requests for information from companies, Apple has already told the government that it can open this iPhone relatively easily and in a matter of hours, said the official, who spoke during a background briefing. 

The New York case will be another test of the government’s ability to use a 1789 statute called the All Writs Act to compel technology companies like Apple to assist law enforcement that's bound to inflame the encryption debate between the tech community and many US officials.

The Justice Department decision to pursue the lawsuit against Apple also comes as two prominent senators are considering a bill that would force businesses to provide law enforcement with access to users' private data when presented with a warrant.

According to a story in The Hill, a discussion draft of the bill from Senate Intelligence Committee leaders Dianne Feinstein (D) of California and Richard Burr (R) of North Carolina states that companies "must provide 'information or data' to the government 'in an intelligible format' when served with a court order." 

The proposal has drawn concern from rights advocacy groups such as the American Civil Liberties Union, which on Friday warned of the danger to individual privacy and security if technology companies were forced to deliberately weaken encryption protections.

The Information Technology and Innovation Foundation, a technology-focused think-tank, described the proposed bill as a measure that would impose an "unqualified demand on companies" to decrypt customer data at the government’s behest.

The iPhone at the center of the dispute in New York is an iPhone 5S running Apple’s iOS 7 operating system. It belongs to Jun Feng, a resident of Queens, N.Y., who was arrested in June 2014 on charges related to drug trafficking. 

The US Attorney for the Eastern District of New York filed a legal brief Friday reiterating the government’s position that it's entitled to Apple’s assistance in executing a previous search warrant on the iPhone. It had used the same statute to try and force Apple's help in the San Bernardino case.

In that case, after a legal back and forth, the FBI said it had found an outside party to help it gain that access without Apple’s assistance and withdrew the case.

The mechanism that the agency used to unlock that phone will not work on the iPhone 5S in the New York case, the government official said Friday. "The situation here is different," the official said. "Here Apple has conceded that it has the technical capability to recover data from phones like the one" in the New York case.

To bolster its case, the government is pointing to numerous instances in which Apple has helped. In 2008, for instance, Apple helped unlock an iPhone belonging to a suspect in a child exploitation case in New York after the government obtained an All Writs Act order with specific language that Apple had wanted included in it. Apple has similarly helped in unlocking password-protected iPhones involving suspects in other criminal investigations.

Apple has resisted the government’s attempts to get it to comply – with some success so far.

In February, federal magistrate Judge James Orenstein of the Eastern District of New York threw out the government’s interpretation of the applicability of the All Writs Act in the case. The DOJ legal brief that the government filed today is in response to that decision.