In unsealed filing, DOJ claims Apple ‘misleading’ on decryption opposition

February 23, 2016

In Apple’s depiction of its intensifying fight with the U.S. Justice Department over accessing data from the iPhone of accused San Bernardino shooter Syed Farook, the company is heroically battling in courts across the country for the principle of protecting the privacy of cellphone users, even if that principle requires Apple to oppose government requests to help investigators crack security on suspected criminals’ phones.

In the Justice Department’s portrayal of the showdown, Apple has cravenly decided to use opposition to a high-profile government decryption request as a marketing ploy. Apple, according to the government, never balked at helping federal investigators break into iPhones until it saw an opportunity to distinguish its privacy protections from those of its competitors.

Apple and the Justice Department are presenting these mutually exclusive versions of reality to sway public sentiment about whether cellphone makers should be compelled to assist the government’s criminal investigations – a question that may eventually be decided by Congress, not the executive branch or the federal courts.

Justice intensified its deprecation of Apple in a letter unsealed Tuesday in federal court in Brooklyn, where a U.S. magistrate judge is weighing a government request that he order Apple, under the 1789 All Writs Act, to help investigators access data from an accused drug dealer’s phone. In the newly unsealed letter, the government accused Apple of “misleading” the magistrate about its response to court orders directing the company to assist criminal investigations. According to the Justice Department, Apple “did not file objections to any of the orders, seek an opportunity to be heard from the court or otherwise seek judicial relief.”

In most recent cases, Justice said, Apple simply put off complying with the court orders, although in one case, the company said it would help if it were served with a revised search warrant. “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 review,” the letter said. “Apple’s position has been inconsistent at best.”

You will not be surprised to hear that Apple has an entirely different account of how it has handled recent All Writs Act orders to help the government get its hands on iPhone data. As my Reuters colleague Nate Raymond reported, Apple said in its letter to the judge in Brooklyn that the Justice Department has sought court orders to enlist the company’s security-cracking assistance with 15 iPhones in the past four months. Apple said it has objected to all of the orders it has received.

Those objections, the company said when I emailed to ask about the disparity between its letter and the government’s response, haven’t come in the form of court filings except in the Brooklyn and San Bernardino cases. In the other cases Apple cited in its letter, it communicated its opposition directly to investigators. Since October, Apple has informed investigators wielding All Writs Act orders that it has “suspended all iOS data extractions” and will not retain possession of phones criminal investigators have asked the company to decrypt.

Apple’s decision to suspend cooperation with the Justice Department, as I’ve reported, stems from a ruling last October by U.S. Magistrate Judge James Orenstein of Brooklyn. Orenstein, of his own volition, refused to grant the government an All Writs Act order without briefing by Apple. That was an unusual decision; judges usually grant these catch-all orders, directing third parties to cooperate with government investigations, as long as federal investigators file pro forma applications showing that they have obtained search warrants and that the third party won’t be unduly burdened by assisting the inquiry.

Briefing in the Brooklyn case took place as the divide over cellphone privacy deepened between the government and Apple, which has made it increasingly difficult to breach users’ security passcodes in successive generations of its operating systems.

Last week, on the same day that Apple publicly announced it would litigate against the order directing it to help the Federal Bureau of Investigation crack security on Syed Farook’s work-issued iPhone, Judge Orenstein ordered the company to provide him with details about all other cases in which the government had asked for an order compelling Apple’s cooperation. The letters unsealed Tuesday responded to Judge Orenstein’s order.

Orenstein may be Apple’s best hope to change the judicial momentum on All Writs Act orders. According to briefs in the Brooklyn and San Bernardino cases, the Justice Department has apparently never been denied an order compelling assistance from a cellphone company when it has already obtained a search warrant on the phone. Judge Orenstein, though, has expressed fundamental doubts about whether the act applies because Congress has declined to legislate mandatory cooperation from cellphone makers.

Whether the final decision on forced data extraction ends up at the U.S. Supreme Court or with lawmakers, it is in the Justice Department’s interest to sully Apple’s image, and vice versa. Tuesday’s accusations won’t be the last of the flying accusations in this fight.

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