Apple has received at least fifteen court orders compelling the company to assist in extracting data from an iPhone over the past five months, including the San Bernardino case, according to court records unsealed this week.
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The tech giant said in a letter to a federal judge in Brooklyn that it has objected to nearly all of the requests, while it is awaiting more information in two of them. The cases have been brought across the country, including in California, New York, Massachusetts, Ohio and Illinois.
Federal prosecutors, however, contend that Apple is “misleading” the judge, according to the government’s filing this week in response to Apple’s letter. The prosecutors note that Apple “did not file objections to any of the orders” in those cases, but rather “simply deferred complying with them.” They argue that “the overwhelming weight of law and precedent continues to support the government’s application in this case.”
In the Brooklyn case, the Department of Justice sought a motion last October to compel Apple’s compliance with a subpoena ordering the company to assist the government in accessing data from an alleged drug dealer’s iPhone, which was running an earlier version of Apple’s iOS software than the phone used by San Bernardino gunman Syed Rizwan Farook.
But rather than issuing an order to compel Apple, as the judge in the San Bernardino case and others have done, the Brooklyn judge instead sought arguments from both the government and Apple, and expressed his own doubts about whether a 227-year-old law, the All Writs Act, actually empowers the court to force Apple’s compliance.
Apple then took its first legal stand against the application of the centuries’ old act, arguing that this is a question for Congress, not the courts.
“Apple doesn’t do this and never did this voluntarily,” argued Apple attorney Marc Zwillinger in a hearing last fall. “This is the question of the time. Which is, ‘What is the balance between privacy and government access today?’ And Congress needs to speak to that.”
A ruling from the Brooklyn judge could come at any time, but no matter which way the case goes, the decision would not be binding on the judge in the San Bernardino case.
The Department of Justice (DOJ) and Apple have been locked in a heated public back-and-forth since last week, when a California magistrate judge ordered that Apple help the FBI access Farook’s work-issued cellphone to aid in the investigation of the case.
Federal prosecutors said that Apple has the exclusive technical means to assist the government in completing its search.
However, in an open letter, Apple said the government is asking the company to create “backdoor” access to the locked phone that would threaten the security of all of its customers.
Apple is expected to formally file its legal objections to the government’s demand by week’s end.