Apple Asks Judge Overseeing NY iPhone Case To Wait Until More Is Known About FBI's New Magic Unlocking Trick

from the let's-hold-off-here... dept

While there are 10 (known) cases covering 13 Apple devices that the DOJ is asking Apple to help unlock, there are two "big ones" that are receiving most of the focus. The big one in San Bernardino, which has been put on hold as the FBI claims it may have actually found a way into the phone -- and the one in NY where magistrate judge James Orenstein wrote a wonderful rejection letter for the DOJ's request. The Justice Department has appealed that decision, and the case has been handed over to Judge Margo Brodie.

However, Apple is now requesting that this case also be put on hold, until more is known about the FBI's hacking attempts in the California case:

As in the San Bernardino Matter, the DOJ argues in this case that an All Writs Act order is appropriate because Apple’s assistance is necessary to effectuate the search warrant issued by the Court.... (“[T]he government cannot access the contents of the phone and execute the warrant without Apple’s assistance.”); .... (“The government does not have any adequate alternatives to obtaining Apple’s assistance.”). This is a disputed issue. Judge Orenstein concluded in his opinion that that the government “failed to establish that the help it seeks from Apple is necessary” as required by New York Telephone.... Apple expects to similarly contest the necessity requirement in connection with the DOJ’s application to this Court.

The iPhone in this case runs an older operating system (iOS 7) than the iPhone in the San Bernardino Matter (iOS 9). Regardless of what the DOJ concludes regarding whether the method being evaluated in San Bernardino works on the iPhone here, it will affect how this case proceeds. For example, if that same method can be used to unlock the iPhone in this case, it would eliminate the need for Apple’s assistance. On the other hand, if the DOJ claims that the method will not work on the iPhone here, Apple will seek to test that claim, as well as any claims by the government that other methods cannot be used.

The outcome of the DOJ’s evaluation will not be known until April 5, when the DOJ submits its status report in the San Bernardino Matter. In the interim, both the Court and the parties lack sufficient information to determine the most appropriate way for this matter to proceed. Going forward without such information would be highly inefficient.

It's becoming increasingly clear that the DOJ and Apple's lawyers are not very happy with each other. Elsewhere in the letter:

The government indicated that it did not oppose a fourteen day extension of Apple’s deadline to respond to the government’s application for an All Writs Act order, but did not want to join in Apple’s rationale for such request. The government further indicated that after Apple filed its letter, the government would review and consider how to respond.

There is an important point here: hacking into an iPhone 4S running iOS 7 is a lot easier than an iPhone running iOS 9. While the DOJ has used this to argue that Apple should absolutely be willing to help in this case, it actually plays against the DOJ's argument, because it should be much easier for the FBI to figure out a way in without help from Apple, because the protections in iOS 7 were much weaker (iOS 8 is where things got much trickier).

Either way, these court battles have a long, long way to go.

Filed Under: all writs act, doj, encryption, fbi, going dark, james orenstein
Companies: apple