DOJ pushes back against Apple in encryption fight

DOJ pushes back against Apple in encryption fight
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The U.S. government is pushing back on Apple’s assertion that unlocking a suspect’s iPhone would constitute an undue burden on the tech company and “tarnish the Apple brand.”

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In a closely watched case involving a phone belonging to a suspect indicted for methamphetamine possession, the Justice Department argued that because Apple’s operating system is “licensed, not sold,” a federal court should require the company to unlock encrypted data.

The Department of Justice (DOJ) has a warrant to examine the contents of the defendant’s iPhone, but because it is protected by a passcode, investigators have been unable to access the device.

“The government respectfully requests that this Court grant the government’s Application and order Apple to assist with execution of the search warrant,” the DOJ argued in a reply brief filed Friday.

“Apple wrote and owns the software that runs the phone, and this software is thwarting the execution of the warrant.”

Apple’s software licensing agreement for the operating system in question — the now-outdated iOS 7 — grants users “a limited non-exclusive license,” meaning that Apple, not the user, owns the system.

Apple argues that while it is possible for it to decrypt the suspect’s phone, it would do damage to the tech giant’s brand.

"Forcing Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its customers and substantially tarnish the Apple brand," Apple said in a brief filed last week.

The company also said that agreeing to the DOJ’s demand would open the door to more government requests, diverting resources and unduly burdening the company.

“This burden increases as the number of government requests increases,” Apple wrote.

The DOJ called Apple’s arguments “without basis as a matter of law” on Friday.

“Apple has repeatedly assisted law enforcement officers in federal criminal cases by extracting data from passcode-locked iPhones pursuant to court orders,” the brief reads.

The Justice Department pointed out that because the software in question is outdated, forcing Apple to unlock the device would not set a burdensome precedent. Ninety percent of iPhone users are now on iOS 8 or later, which Apple cannot de-encrypt.

“Apple demonstrates why any cumulative burden is minimal and likely to decrease with regard to the type of relief requested here: by its own measure, Apple retains the ability to bypass the passcode on only the 10 percent of its mobile devices that are ‘pre-iOS 8,’ and that number will continue to shrink as new devices are upgraded and replaced,” the brief read.

U.S. Magistrate Judge James Orenstein on Monday expressed deep skepticism as to whether he can order Apple to de-encrypt the device, Reuters reports. 

"What you're asking them to do is do work for you," U.S. Magistrate Judge James Orenstein told government attorneys at a federal court hearing. 

The dispute is part of a larger debate over whether law enforcement should be permitted to bypass encryption during criminal investigations.

Earlier this month, the White House officially decided not to pursue any legislation that would require companies to give law enforcement access to encrypted data.

Privacy advocates claim that automatic federal access infringes on individual rights and weakens overall cybersecurity.

The Department of Justice and the FBI claim that encrypted devices hamper legitimate investigations to the detriment of public safety.

“The government has obtained a lawful search warrant for evidence of crime, but unless this Court issues the requested order, that warrant will be meaningless, and legitimate interests in public safety and the rule of law will be thwarted,” the DOJ wrote in its brief.

--This post was updated at 4:55 PM.