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Apple tells NY judge FBI has ‘utterly failed’ to prove it needs help unlocking iPhones

TechCrunch TechCrunch 15/04/2016 Devin Coldewey

Apple has strong words for the Justice Department in a document filed in a federal court case in New York where it has been asked to bypass an iPhone’s security. The simple fact that the feds  unlocked a phone without any help shows that they didn’t need it in the first place, Apple asserts: “The government has utterly failed to satisfy its burden to demonstrate that Apple’s assistance in this case is necessary.”

What’s actually being argued is the FBI’s appeal of an order from U.S. Magistrate Judge James Orenstein, filed at the end of February.

The 50-page order absolved Apple of any obligation to assist the government in this case — but Orenstein also concluded that the All Writs Act, an 18th-century law now being used to compel tech companies to unlock devices, is legally insufficient to be used in that manner:

Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government’s motion is denied.

If such a precedent were to propagate and be adopted by other courts or supported in superior ones, it would be a serious blow against the FBI’s ability to use All Writs as an all-purpose phone-opener, as it currently does in dozens of cases.

Apple continues swinging in its preliminary notes, taking the government to task for failing to make any attempt to use other methods to unlock the phone.

The government has made no showing that it has exhausted alternative means for extracting data from the iPhone at issue here, either by making a serious attempt to obtain the passcode from the individual defendant who set it in the first place—nor to obtain passcode hints or other helpful information from the defendant—or by consulting other government agencies and third parties known to the government.

And it gets its digs in on this implementation of All Writs as well, for the record.

While Apple strongly supports, and will continue to support, the efforts of law enforcement in pursuing criminals, the government’s sweeping interpretation of the All Writs Act is plainly incorrect and provides no limit to the orders the government could obtain in the future.  And that is precisely what the government seeks here:  to obtain an order that it can use as precedent to lodge future, more onerous requests for Apple’s assistance.

We’ll know soon whether U.S. District Judge Margo Brody will find Apple’s stream of precedent-backed invective convincing.

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