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FBI, Apple continue cat-and-mouse game over iPhones in New York

A new day, a new iThing, a new quest for precedent

Despite walking away from a high-profile confrontation, the FBI is not giving up on its cat-and-mouse game with Apple over access to iPhone data, and the issue has now moved to New York.

On Friday, the Feds appealed a decision last month by a Brooklyn magistrate, James Orenstein, to reject their demand that Apple help them gain access to an iPhone used by a drug dealer. The appeal notes:

"The government's application is not moot, and the government continues to require Apple's assistance in accessing the data that it is authorized to search by warrant."

In his judgement in March, Orenstein slapped down the FBI's demand and claimed its use of the 1789 All Writs Act was improper. He wrote: "The implications of the government's position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results."

The dealer in the Brooklyn case, Jun Feng, has since pleaded guilty and is due to be sentenced. But the FBI is appealing the magistrate's judgment because the All Writs Act forms the centerpiece of its strategy to get a legal precedent that would force all companies to allow it access to information held on their products or run through their services.

It is the same Act that the FBI claimed entitled it to force Apple to allow it to open up the phone of San Bernardino shooter Syed Farook, and it is the Act it wants to use in the future whenever technology moves ahead of current law.

All about the numbers and digits

The two cases – Farook and Feng - are very similar but also significantly different due to the two phones in question. Farook's phone was an iPhone 5C running iOS 9 and Jun Feng's an iPhone 5S running iOS 7.

Apple can break into any phone running version 7 of its operating system and, in fact, it has done so repeatedly for law enforcement in the past. It cannot, however, break into version 9 and has said that to do so it would have to effectively create a new operating system – something it claims the FBI cannot legally compel it to do.

Due to the nature of the Farooks' case – the shooting of innocent civilians in what many view as a terrorist act done in the name of radical Islam – the FBI felt it had a case that would play extremely well both in public and in the courts.

But after Apple put up a strong defense and with even Washington starting to turn against the FBI's tactics, the Feds decided not to risk losing its core legal argument that the All Writs Act gives it the authority to oblige companies to act.

It backed down from the 5C/iOS 9 fight literally the day before it was due in court by claiming it had found a third party that could access the device. And now with the Feng case, it is hoping to use the situation of a phone that Apple acknowledges it can break into but is refusing to do so to bolster its interpretation of the All Writs Act.

How convenient

Things are further complicated by the fact that the FBI is refusing to provide anyone – even Apple – with details of how it cracked the phone. It has claimed however that the approach only works for an iPhone 5C – a claim that many people are suspicious of.

To complicate things even further, a different case featuring a different iPhone – this one thought to be an iPhone 6 or 6S – taking place in Baltimore may also have a bearing on the case.

In that case, a further magistrate ruled in favor of the FBI and ordered Apple to help investigators gain access to data on a phone belonging to an alleged gang member, Desmond Crawford. Under the order – which was unsealed Friday – magistrate Marianne Bowler said Apple must provide "reasonable technical assistance" to the FBI to get the information off Crawford's phone.

Both Apple and the FBI are accusing one another of playing games and being less than straightforward in their positions. And there is a growing consensus among everyone involved that the issue is going to have to be decided in Congress rather than the law courts, given its complexity, variety and precedent-setting nature.

To that end, the FBI is fighting to ensure that its authority under the All Writs Act is not diminished and Apple is fighting to make sure it cannot be obligated to break its own designs to give the FBI access.

When it comes to Congress, that fight is just beginning, with the first draft of a bill being published Friday that would oblige all companies to provide access to unencrypted data on any device or service they provide on presentation of a warrant.

In expectation of that approach, a pushback against it has already been started, with Senator Ron Wyden last week exhorting digital rights activists and tech companies to work together to block the legislation in the same way they did over the SOPA and PIPA bills.

This issue is far from over. ®

PS: According to documents unsealed today, a magistrate judge in Massachusetts granted an FBI request to order Apple to help investigators extract data from an iPhone in a Boston gang case. The request was approved in February, but the Feds have not made any use of the order, amid the San Bernardino brouhaha.

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