Justice Dept. appeals Apple's N.Y. legal victory, says company unlocked numerous iPhones before fight

"The Constitution ... permits reasonable searches including ones where the government has a warrant," federal prosecutors wrote in a legal brief Monday.

By Doug G. Ware

NEW YORK, March 7 (UPI) -- As expected, the U.S. Department of Justice on Monday appealed a New York judge's ruling last week that permitted tech giant Apple to avoid helping federal authorities unlock a drug suspect's smartphone.

Justice officials filed a brief Monday to renew the case in federal court in Brooklyn. Prosecutors are seeking to overturn the ruling made last week by Magistrate Judge James Orenstein -- who said Apple is not legally obligated to help unlock an accused drug dealer's iPhone so government investigators can access its data.


"This case in no way upends the balance between privacy and security," prosecutors wrote in the brief. "The Constitution ... permits reasonable searches including ones where the government has a warrant. Here, the government has a warrant. And a longstanding federal statute provides this court with the authority to require Apple to assist with the warrant."


The federal statute prosecutors refer to is the All Writs Act -- a law introduced in 1789 and amended several times in the decades since -- which effectively permits federal courts to issue orders requiring companies to work with law enforcement agencies.

The All Writs Act, though, may only be invoked if four conditions are met -- there's an absence of alternative remedies, there's an independent basis for jurisdiction, the writ is necessary or appropriate in aid of jurisdiction, and the writ must be "agreeable to the usages and principles of law."

In its filing Monday, government prosecutors claimed that Apple cooperated with similar requests and unlocked at least 70 iPhones in the past, in accordance with the All Writs Act -- and even stated that doing so posed "no significant burden to the company."

"The Department of Justice has made the same application, for the same assistance, from the same company, dozens of times before," the government's legal brief said. "The company has complied every time. Until now."

Apple, which praised last week's ruling, responded Monday by saying the government is seeking action that is unconstitutional.

"Judge Orenstein ruled the FBI's request would 'thoroughly undermine fundamental principles of the Constitution' and we agree," the company said. "We share the Judge's concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone's safety and privacy."


Prosecutors, though, said in Monday's brief that Apple only decided to fight the government's request once Judge Orenstein showed a reluctance to issue a warrant in behalf of the government.

"Given the public attention directed to the case by the magistrate judge, Apple's public relations concerns prompted it to object," prosecutors wrote.

Apple is also involved in a similar case in Southern California, where the Justice Department is also trying to force the company to help FBI investigators break into an iPhone that was used by San Bernardino terror suspect Syed Farook.

In each case, the FBI is looking for a way around an iPhone security feature that resets the phone and erases all data contained on the device if the incorrect passcode is entered too many times.

Specifically, in the California case, the Justice Department wants Apple to create a one-off program to bypass that feature -- which would give agents an unlimited number of attempts to enter the correct passcode.

Prosecutors say the new program isn't needed in the New York case -- only Apple's technical assistance, since it involves an older iPhone with less sophisticated encryption.

Apple, as well as other advocates, have stated serious concerns about potential privacy-related consequences that might arise if they were forced, against their will, to help authorities break into the devices.


In fact, about 40 other companies have filed "friend of the court" briefs in support of Apple in the San Bernardino case.

The New York case focuses on a smartphone belonging to a drug trafficker, which investigators believe may contain data that would shed light on the case or finger other accomplices. Authorities want Apple's help in the San Bernardino case for the same reason.

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