(Bloomberg) -- Apple Inc.’s fight over privacy with the U.S. isn’t over yet, even after the government dropped a demand for the company’s help in accessing a California shooter’s iPhone because someone else found a way to crack it.
The U.S. said it will keep fighting to get the company’s help in getting data off a phone in Brooklyn, New York, that belonged to a drug dealer because Apple provided assistance in accessing such devices earlier. In a court filing Friday, the government said it’s going ahead with an appeal of a judge’s order denying its request for Apple’s help.
The battle between the world’s most valuable tech company and the U.S. over encryption and data privacy has sparked a national debate, with dozens of companies and organizations siding with Apple, while law enforcement has generally taken the government’s side.
FBI Director James Comey has called it the most difficult issue he has faced in government. Politicians in Washington have also divided on the issue and are attempting to craft legislation addressing data privacy. Donald J. Trump, the leading contender for the Republican nomination for president, had called for an Apple boycott over its refusal to help.
It’s far from certain that the Justice Department will prevail on appeal, said Timothy Edgar, a senior fellow at the Watson Institute for International Studies and Public Affairs at Brown University. After U.S. investigators managed to crack the California phone, a Brooklyn judge will “likely be skeptical that they don’t have a way to break into this phone either," he said in a phone interview.
The U.S. said on March 28 that it had successfully decrypted iPhone used by a man who with his wife carried out a December attack in San Bernardino in which 14 people were killed. That ended a standoff between Apple and the Justice Department there.
An Apple attorney said the company doesn’t know how the government broke into the California phone. The hack will have a short shelf life because Apple will improve its security features, the attorney told reporters on a conference call. The attorney spoke on the condition of not being named.
Apple said the FBI is attempting to set a precedent to require it and other companies to work on the government’s behalf. The company questioned whether the government has exhausted all the methods available to obtain the data on the phone. It said it’ll urge the court in New York to require the FBI to disclose more details about how it tried to break into the handset and how that compares with what happened in San Bernardino.
In the pivotal clash over privacy rights, the Brooklyn judge called a U.S. argument that the company is required to cooperate under a 1789 statute called the All Writs Act “obnoxious to the law.”
The two phones were different models and the tool which the FBI used to break into the California phone likely wouldn’t work on the iPhone 5S at the center of the Brooklyn case. Comey suggested on Thursday that the method used to access the California phone is only effective on the iPhone 5C and earlier models.
Since the Brooklyn handset runs an earlier version of Apple’s mobile operating system -- iOS 7 -- it may be easier to hack the phone’s software. However, mobile forensics companies advertise that they are able to break into iPhones which run earlier versions than iOS 8.4.
The government ran into an even tougher problem in the case of an alleged gangster in Massachusetts. He had an iPhone 6, with an iOS 9.1 operating system, which, according to a person familiar with the case even Apple can’t crack.
A magistrate judge had ordered Apple to help the government access the data on the phone in February, with documents in the case being unsealed on Friday. Apple had told the judge it couldn’t comply with the order, according to the person.
The unsealing of the order came at the request of the American Civil Liberties Union of Massachusetts, which argued in a court filing that "public access to All Writs Act cases is vitally important to an ongoing and nationwide debate" regarding whether the law can be used to compel companies to help the government access mobile phone data.
"It makes an enormous difference whether this stuff gets litigated in public view or not," Matthew Segal, legal director of the Boston-based group, said in a phone interview. Before the California and Brooklyn disputes over access to phones, similar All Writs applications and orders might by filed and issued on the same day in secret, he said.
After helping prosecutors unlock at least 70 iPhones, Apple last year stopped cooperating and said the company would no longer serve as the government’s helper. Apple Chief Executive Officer Tim Cook said in February that U.S. demands for iPhone access are a chilling attack on privacy. The government disagreed, saying Apple is more concerned about its marketing and brand identity than about the safety of the public.
The government has sought Apple’s help because self-destruct features on newer iPhones wipe out data if prosecutors try “brute force” techniques to hack in. The contents of the drug dealer’s phone were not backed up to remote cloud storage, leaving the physical device as the only source of data, the U.S. said.
Apple has already conceded that it could get into the iPhone in the Brooklyn case within a matter of hours or minutes, a law enforcement official told reporters Friday.
In court papers, the Justice Department has said Apple had previously helped the government unlock phones of people accused of drugging and sexually abusing children, a defendant who was later convicted of selling drugs in Florida, and a child pornographer. In each instance, the government said it won an All Writs Act order and Apple readily complied. The company extracted the data in child sex abuse case “immediately,” the U.S. said.
The hacking tool used in the San Bernardino case was tested to determine whether it would work on other phone models, the official said. The Justice Department official declined to discuss the results of the tests.
The official also declined to discuss any details about talks the Justice Department has had with outside entities about hacking into the iPhone in the Brooklyn case.
The official also said it’s "premature" to say whether the U.S. will disclose the hacking tool to Apple.
If there’s a master strategy at work for the Justice Department, it might be that it’s seeking to appeal and lose, Edgar said. Then, "they could go to Congress and get legislation" that would impose more requirements on companies to help with investigations, he said.
But that would be a "cynical" view, Edgar said.
The case is In Re Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant, 15-mc-1902, U.S. District Court, Eastern District of New York (Brooklyn).
(Updates with Massachusetts case in 4th paragraph under Precedent-Setting subheadline.)
--With assistance from Alex Webb and Adam Satariano
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