Apple demands delay in NY iPhone case

Company wants to test the alt approach if government claims it won't work on NYC drug dealer's iPhone

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.

"Regardless of what the DOJ concludes regarding whether the method being evaluated in San Bernardino works on the iPhone here, it will affect how this case proceeds," Zwillinger asserted.

The New York iPhone runs iOS 7, the 2013 edition of Apple's mobile operating system. The Cupertino, Calif. company made extensive changes to iOS's security model starting with iOS 8.

Although Zwillinger said that the DOJ did not oppose the proposed 14-day extension in the New York case, he noted that the government "did not want to join in Apple's rationale for such request."

Zwillinger also revealed that Apple would want time to test the mysterious iPhone hacking procedure if the DOJ contended that it would not work on the drug dealer's iPhone. "Apple will seek to test that claim, as well as any claims by the government that other methods cannot be used," he said. Previously, Apple said that it wanted to know how the San Bernardino iPhone was hacked, assuming the new know-how did the trick.

The government has not responded to that request, but security experts have reported that the FBI has classified the process, a move that might be the basis for a future refusal to share information with Apple.

Apple suggested that the two parties to the New York case issue either separate status reports or a jointly-written one by April 11, or six days after the DOJ's report is due in the San Bernardino litigation.

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