US no longer requires Apple's help to crack iPhone in New York case

The government said "an individual" had given it the passcode to the phone

The U.S. no longer requires Apple’s assistance to unlock an iPhone 5s phone running iOS 7 used by the accused in a drug investigation, stating that an “individual provided the passcode to the iPhone at issue in this case.”

The Department of Justice has withdrawn its application in the U.S. District Court for the Eastern District of New York.

DOJ  had earlier appealed to District Judge Margo K. Brodie an order from Magistrate Judge James Orenstein, ruling that Apple could not be forced to provide assistance to the government to extract data from the iPhone 5s.

“Yesterday evening, an individual provided the passcode to the iPhone at issue in this case,” DOJ wrote in a filing to the court late Friday. “Late last night, the government used that passcode by hand and gained access to the iPhone.” The filing did not provide information on who the individual was and in what capacity he was acting.

Jun Feng, the accused in the methamphetamine possession and distribution investigation, provided the passcode to investigators, said The Wall Street Journal, quoting people familiar with the matter. Feng has already pleaded guilty and is due to be sentenced. He had earlier told investigators that he didn’t remember the passcode.

The filing in the New York court has parallels to another dispute between Apple and the government over assistance in cracking an iPhone 5c running iOS 9 used by one of the terrorists in the San Bernardino killings in December. In that case in the U.S. District Court for the Central District of California, the government had demanded Apple’s assistance but later asked the court to vacate its order as it had accessed data stored on the phone, using a tool from a third party.

The tool addressed only a “narrow slice” of iPhones, Federal Bureau of Investigation director James Comey said earlier this month. While it could unlock the the iPhone 5c running iOS 9, the tool does not work on the iPhone 5s or 6, he said. Apple, meanwhile, demanded to know in the New York case whether the government had exhausted all other options to get to the data.

Judge Orenstein had ruled that Apple can’t be forced to extract data from the iPhone 5s under a statute called the All Writs Act, the same law invoked in the California case.

The government's reading of the All Writs Act, a statute enacted in 1789 and commonly invoked by law enforcement agencies to get assistance from tech companies on similar matters, would change the purpose of the law “from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt,” Orenstein had written in his order.

The government’s withdrawal of its demand for Apple’s assistance in both the New York and California cases leaves unresolved a key legal issue whether the government can compel device makers to help break the encryption and other security in their products, which is an issue of significance both to tech companies and privacy groups.

Apple could not be immediately reached for comment.

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John Ribeiro

IDG News Service
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