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Apple demands delay in NY iPhone case

Gregg Keizer | March 29, 2016
Company wants to test the alt approach used by FBI in San Bernardino terrorist iPhone case.

Apple last week asked a federal magistrate in New York to extend a court filing deadline until after the government decides whether it can unlock a different iPhone in a similar case, documents revealed.

The New York case involved an iPhone used by a convicted drug dealer. Last year, the the Department of Justice (DOJ) requested a court order compelling Apple to help authorities crack that phone's security so that investigators could access its data. When Apple contested the motion in October it gave the first hint that it had drawn a line in the sand on assisting authorities.

Magistrate Judge James Orenstein refused the government's demand, but the DOJ has appealed.

Because of the abrupt about-turn in a different case a week ago -- the DOJ told a California federal magistrate that it had a lead on another way to crack the iPhone used by the terrorist Syed Rizwan Farook, and might not need Apple's assistance in that instance -- a lawyer for Apple argued that it would be "highly inefficient" to go forward with the New York case until the government reported the results of the new technique on April 5.

In both cases, the DOJ cited the 1789 All Writs Act as the foundation for its demands that Apple help law enforcement break into the iPhones.

"As in the San Bernardino Matter, the DOJ argues in this case that an All Writs Act order is appropriate because Apple's assistance is necessary to effectuate the search warrant issued by the Court," wrote Marc Zwillinger, an attorney retained by Apple in both cases, in a letter to the New York court on Thursday. "This is a disputed issue."

The California case centered around the iPhone 5C used by Farook, who along with his wife, Tafsheen Malik, killed 14 in San Bernardino, Calif., on Dec. 2, 2015. The couple died in a shootout with police later that day; authorities quickly labeled it a terrorist attack.

"The outcome of the DOJ's evaluation [of the alternate method to crack the passcode of Farook's iPhone] will not be known until April 5, when the DOJ submits its status report in the San Bernardino matter," Zwillinger said. "In the interim, both the court and the parties lack sufficient information to determine the most appropriate way for this matter to proceed. Going forward without such information would be highly inefficient."

Zwillinger asked a New York magistrate to postpone a March 31 filing deadline in the case until after the Federal Bureau of Investigation provides its status report on the alternate approach to gain access to data on Farook's iPhone. If successful, the procedure would make moot the DOJ's demand that Apple assist by writing special software to circumvent the security and privacy safeguards baked into iOS 9, the operating system that powered Farook's phone.


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