— In the latest volley in its high-profile fight with Apple, the Justice Department said on Monday that a federal judge in Brooklyn had erred last week in refusing to order the company to unlock a drug dealer’s iPhone.
“Apple is not being asked to do anything it does not currently have the capability to do,” Justice Department prosecutors said as they appealed the decision made last week by Magistrate Judge James Orenstein of Federal District Court for the Eastern District of New York.
The prosecutors argued that their demand for technical help was a routine law enforcement request — no different from the “dozens” of times that Apple had agreed to cooperate in cases before this one — and that it “in no way upends the balance between privacy and security.”
Lawyers and analysts on both sides of the encryption debate are watching the Brooklyn case closely because they believe it could foreshadow the ultimate outcome of the case involving an iPhone used by one of the attackers in the December terrorist rampage in San Bernardino, Calif.
The two cases are very different in some ways — one involves a high-level terrorism investigation, the other an inquiry into a low-level drug dealer — but both center on whether the Justice Department can use a 1789 statute to force Apple to unlock an iPhone.
Unlocking the iPhone in the Brooklyn case would be far easier for Apple, because it involves a device running an older operating system with simpler encryption.
In the San Bernardino case, Apple lawyers say the company would have to create an entirely new program to get into the iPhone used by Syed Rizwan Farook, who along with his wife killed 14 people. That phone was running the latest operating system.
The San Bernardino case offers prosecutors what they believe is a strong test case to establish the government’s power to force a technology company to unlock its own encryption.
Among the factors they cite: The California rampage was the biggest terrorist attack on American soil since Sept. 11, 2001; Mr. Farook is dead; and the phone was owned by his employer — San Bernardino County, where he worked as an environmental health specialist.
“The government certainly believes they have a very strong set of facts in San Bernardino,” said Eric A. Berg, a former Justice Department lawyer who now works on electronic surveillance issues at a Milwaukee law firm. The Brooklyn case, on the other hand, “muddies the waters for them in what they’re trying to do.”
In his ruling last week, Judge Orenstein expressed concern that the government was claiming almost limitless authority to compel Apple to cooperate with law enforcement requests. And he noted that while Apple had declined to help the Justice Department unlock this specific phone, “Apple is not doing anything to keep law enforcement agents from conducting their investigation.”