Apple has requested a court in New York to rule finally whether it can be compelled to assist investigators to get around the passcode of an iPhone 5s belonging to a defendant in a criminal case.
The Department of Justice, citing a statute called the All Writs Act, tried to get help from Apple to bypass the security of the phone in government possession.
Apple’s lawyer said in a letter to U.S. Magistrate Judge James Orenstein of the U.S. District Court for the Eastern District of New York that the company would like an order as it has received additional requests similar to the one underlying the case before the court.
The company “has also been advised that the government intends to continue to invoke the All Writs Act in this and other districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the government’s possession,” wrote Apple’s counsel Marc J. Zwillinger in a letter Friday.
The government had informed the court in October last year that Jun Feng, the accused in a methamphetamine possession and distribution case, had entered a guilty plea, but it said that its application to order Apple’s assistance to bypass his iPhone 5s passcode was not moot as the government was still looking for evidence from the device as part of a continuing investigation, and because the criminal defendant still had to be sentenced or a judgment entered.
Apple now also argues that the matter is not moot because “it is capable of repetition, yet evading review.” The question of whether a third party like Apple can be compelled to assist law enforcement in its investigative efforts by bypassing the security mechanisms on its device has been fully briefed and argued, according to the letter. “The Court is thus already in a position to render a decision on that question,” Apple said.
Judge Orenstein has not passed a final order for around three months, presumably to assess whether a decision is relevant in the wake of subsequent developments in the court.
The current thinking among some lawmakers and law enforcement agencies in the U.S. is also veering around to the view that companies should provide backdoors to investigators, so that they can get access to encrypted data on smartphones. Legislation introduced in California aims to require manufacturers of smartphones and operating system providers to provide such decryption support to law enforcement, while another in New York would ban the sale of encrypted phones.
Judge Orenstein had earlier expressed doubt whether the government could use the All Writs Act to force an electronics device provider to assist law enforcement in its investigations and had asked Apple for comments on whether executing the order would be unduly burdensome.
The All Writs Act gives federal courts the authority to issue orders that are “necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” But as the Electronic Frontier Foundation pointed out, the Act is “not a backdoor to bypass other laws” and the Supreme Court has set out limits to the Act, including requiring that a court cannot use it to bypass other laws or the Constitution, or require third parties to assist in ways that would be “unreasonably burdensome.”
Apple said it was possible to access certain types of unencrypted user data from the iPhone 5s phone running iOS 7, though it would not have been possible if it was a device running iOS 8 or higher. But it pointed out that the process, including possible testimony by Apple staff at trial, would be unnecessarily burdensome as the number of government requests increase.
The DOJ said that Apple had previously assisted investigators in federal criminal cases to extract data from password-locked iPhones under court orders. Apple said its previous acquiescence to judicial orders does not mean it consents to the process.