The Justice Department, in a court filing late Monday, accused Apple of suddenly changing its legal position on cooperating with federal law enforcement after years of complying with court orders based on a broad 1789 law.
The filing came in a Brooklyn case involving a methamphetamine dealer. The Drug Enforcement Administration sought Apple’s help to break into a phone owned by the suspect, Jun Feng. Despite a guilty plea by Feng, the government says it still needs access to the phone data as part of an ongoing investigation.
It’s separate from another case in California, where the FBI won a judge’s order to force Apple to assist investigators in breaking into the iPhone of one of the terrorists who killed 14 people in a December shooting attack in San Bernardino.
But the seeds of the government’s fight with Apple were sown in the Brooklyn courtroom of U.S. Magistrate Judge James Orenstein.
The government is basing its authority in both cases on the All Writs Act. In recent decades, judges have allowed the government to use the law to require phone companies to assist law enforcement conducting investigations; more recently judges have extended its scope to cover companies like Apple.
But, overseeing the run-of-the-mill drug case involving Feng, Orenstein first raised doubts about whether the All Writs Act applied to Apple. Instead of approving the DEA’s request to order Apple to help break into Feng’s phone, as other judges routinely have done in other cases, Orenstein asked Apple to weigh in.
According to the Justice Department’s court filings in Brooklyn, Apple has cooperated with All Writs Act orders more than 70 times, though those cases involved older model iPhones.
“Only more recently, in light of the public attention surrounding an All Writs Act order issued in connection with the investigation into the shootings in San Bernardino, California, has Apple indicated that it will seek judicial relief, in that matter,” according the DOJ court filing. “Apple’s position has been inconsistent at best. The overwhelming weight of law and precedent continues to support the government’s application in this case.”
The iPhone 5S in the Brooklyn case runs Apple’s older operating system, known as iOS 7. It therefore doesn’t have the tougher encryption protections of newer models that run iOS 8 and later versions. The phone at issue in San Bernardino uses iOS 8, and includes a setting that deletes the phone’s data if the wrong password is entered incorrectly 10 times.
Apple has begun a public fight against the government’s use of the All Writs Act in the San Bernardino case. The company says it will fight the court order because complying would require it to create new software that would undermine the security of its customers.
In the Brooklyn case, Apple jumped at the opening provided by Judge Orenstein.
Orenstein’s qualms are partly based on the fact Congress has yet to pass a law explicitly requiring tech companies like Apple to provide assistance to law enforcement as phone companies and other providers are.
The company is urging the judge to rule that the government is exceeding the authority provided by current law.
“The government’s position that the All Writs Act can be used whenever a statute does not expressly prohibit an action is untenable,” attorney Marc Zwillinger wrote.
Judge Orenstein asked Apple to provide a list of other pending cases where the company raised similar objections. That list remains sealed by the court.
The Justice Department, in its Monday filing, said: “Apple stated that it had ‘objected’ to some of the orders. That is misleading. Apple did not file objections to any of the orders, seek an opportunity to be heard from the court, or otherwise seek judicial relief. The orders therefore remain in force and are not currently subject to litigation.”
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