Apple: NY case shows FBI was never interested in evidence on San Bernardino terrorist's iPhone



SAN BERNARDINO >> The U.S. Department of Justice’s attempt to pressure Apple into unlocking an iPhone once used by one of the two people responsible for the Dec. 2 terrorist attack in San Bernardino was all about setting a precedent, not getting evidence — and the department’s actions in New York prove it, Apple Inc. officials said Friday.

Earlier in the day, the Department of Justice sent a short letter to U.S. District Court Judge Margo Brodie, saying it will not modify its request to get Apple’s help in a Brooklyn case.

“The government does not intend to modify its March 7, 2016, application,” the brief letter from Robert L. Capers, the U.S. Attorney for the Eastern District of New York, reads in part. “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.”

The letter comes almost two weeks after the department declared that it didn’t need Apple’s help in the San Bernardino case after all, having found another way into an iPhone 5C issued to Syed Rizwan Farook by the San Bernardino County Department of Public Health, which employed him as a health inspector.

In February, U.S. Magistrate Judge James Orenstein ruled that Apple could not be forced to assist government investigators against its will and said Congress ought to be the ones to take up the issue. The Brooklyn phone in question is an older model iPhone used by a methamphetamine dealer who pleaded guilty in October. As in the aborted attempt with the phone in the San Bernardino case, the federal government is relying on the 1789 All Writs Act, which gives the courts the power to order third parties to technically assist authorities.

The Department of Justice appealed the ruling in March.

Apple attorneys, speaking on condition of anonymity, said they were “disappointed” in the department’s decision to go forward with the case in New York, in a phone call with reporters.

And, they said, the DOJ’s decision to continue pressuring Apple to help out with what they described as a “routine law enforcement matter” leading up to a May sentencing hearing, underscores that the federal government mostly wanted to set a precedent in San Bernardino so that technology providers could be forced to unlock encrypted devices.


Although the department got into Farook’s phone with a tool provided by a third-party source rumored to be an Israeli cybersecurity firm, FBI director James Comey has said the tool won’t work on more recent versions of Apple’s iPhone, which include encryption technology in their hardware.

Apple attorneys said Friday that they do not intend to sue to get the Department of Justice to say how they unlocked Farook’s phone, as they’re confident that the technique will have a “short shelf life,” as older iPhones are replaced with more sophisticated models.

Federal officials have not said what, if anything, they ended up getting off of Farook’s work phone. He and his wife, Tashfeen Malik, destroyed two personal phones before the Dec. 2 attack at the Inland Regional Center, in which they killed 14 and wounded 22.


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