Apple and Justice Department start new feud over locked iPhone in New York

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Apple and the US Justice Department are headed back to court over a locked iPhone. And once again, both sides are accusing the other of being duplicitous.

This time, the US government is pushing a federal court in New York to force Apple to unlock a drug dealer’s device even after the man pleaded guilty. A federal magistrate has previously turned down that request, but the government counters that, in this case, Apple has the technical means to help, and should be compelled to do so.

On Friday, Apple accused the government of trying to have it both ways. In March, the Justice Department abandoned its iPhone unlocking case in San Bernardino, California, after it said it found a way to hack into the device without Apple’s help. The government has since offered almost no details on the technique and now argues that only Apple can help it get inside a locked phone. In a call with reporters, an Apple attorney said the company would try to use the new legal fight to force the government to reveal its phone-hacking technique.

The renewed legal fight comes as draft legislation that would effectively criminalize strong encryption met with fervent condemnation by privacy and cybersecurity experts, including a leading US senator on the intelligence committee from which the legislation will emerge. The bill, if passed, would force companies to find ways to provide user data to authorities in spite of any security measures on their products.

On Friday, the Justice Department filed notice in the eastern district of New York that it would fight on the drug case, telling the judge, Margo Brodie, that it “continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant”.

The New York case isn’t as headline-grabbing as the San Bernardino matter, which involved a major act of terrorism and the US government ordering a company to modify one of its products.

Rather, Apple and the government are fighting about a phone linked to a routine drug case and Apple acknowledges that, on a technical level, it could easily unlock the device. It doesn’t want to, because it wants to stop serving as a locksmith when investigators can’t get inside a suspect’s phone.

People close to Apple’s legal team have said the New York case seemed like a tougher legal slog for the iPhone maker. But in February, magistrate judge James Orenstein sided with Apple, arguing the government sought to draw too much power from a vague legal principle known as the All Writs Act, which gives judges broad authority to ensure orders are carried out.

A US law enforcement official told reporters on Friday that the hacking tool the FBI ultimately found for the San Bernardino case would not work on the iPhone 5S in the Brooklyn drug case.

In a separate background call with reporters on Friday, an Apple attorney, who declined to speak on the record, said the government has lost some credibility in claiming only Apple can get inside devices. The FBI had repeatedly told a federal judge in California that only Apple could devise a means into that iPhone 5C before it was approached by an unnamed third party that could. The law enforcement official would not discuss efforts by the FBI to seek a similar solution with the third party in the drug case.

The Apple attorney said on Friday that the company still does not know how the FBI’s phone-hacking technique works or if it even exists.

As both Apple and the FBI prepared for a renewed courtroom clash, Senator Ron Wyden attacked a draft bill from his Senate intelligence committee colleagues as a dangerous measure to undermine encryption.

As written, the “discussion draft” of the bill would compel tech companies to provide law enforcement officials who possess warrants to provide user data “in an intelligible format”, as well as “such technical assistance as is necessary” to do so. Privacy and cybersecurity experts said the bill would effectively outlaw robust encryption increasingly used by online communications services, such as the end-to-end encryption recently adopted by chat service WhatsApp.

In San Bernardino, Apple resisted such a warrant as illegal and dangerous, prompting the FBI to contradict its assurances to the court that it possessed no other way into an iPhone 5C used by a San Bernardino terrorist and abandon the case after finding technical means to defeat the phone’s security measures.

“This legislation says a company can design what they want their back door to look like, but it would definitely require them to build a back door,” Wyden said.

“For the first time in America, companies who want to provide their customers with stronger security would not have that choice – they would be required to decide how to weaken their products to make you less safe.”

Neema Singh Guliani of the American Civil Liberties Union said the bill would represent “a clear threat to everyone’s privacy and security” and called on its authors to abandon their efforts.

“Instead of heeding the warnings of experts, the senators have written a bill that ignores economic, security and technical reality. It would force companies to deliberately weaken the security of their products by providing back doors into the devices and services that everyone relies on,” Singh Guliani said.

But the leadership of the Senate intelligence committee, Republican Richard Burr of North Carolina and Dianne Feinstein of California, said they would not comment on the leaked draft and pledged to go forward with their bill.

“We’re still working on finalizing a discussion draft and as a result can’t comment on language in specific versions of the bill. However, the underlying goal is simple: when there’s a court order to render technical assistance to law enforcement or provide decrypted information, that court order is carried out. No individual or company is above the law. We’re still in the process of soliciting input from stakeholders and hope to have final language ready soon,” the senators said in a joint statement.

Numerous people in the White House who have seen the draft legislation did not approve of the legislation, a person familiar with the matter said. An administration official said the White House was staying out of the congressional fray ahead of the Burr-Feinstein bill’s introduction.

Powered by Guardian.co.ukThis article was written by Danny Yadron in San Francisco and Spencer Ackerman in New York, for theguardian.com on Friday 8th April 2016 19.17 Europe/Londonguardian.co.uk © Guardian News and Media Limited 2010