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Apple-FBI Encryption Battle Shifts to New York (Updated)

A low-profile Brooklyn drug case shifts to center stage in the encryption debate.

Bryan Thomas / Getty

Just when it appeared Apple’s battle with the government over encryption had been defused, it’s now apparent it has merely shifted venues — to New York.

The U.S. Attorney’s office notified a federal judge in Brooklyn today that the government plans to press forward with its request to have Apple assist in unlocking a phone seized in a Brooklyn drug case, moving the low-profile case to center stage in the ongoing debate over encryption.

“The government’s application is not moot and the government continues to require Apple’s assistance in accessing the data that it is authorized to search by warrant,” U.S. Attorney Robert Capers wrote to the court.

Apple had requested a delay in the case until it could be determined whether the FBI’s new technique for hacking an iPhone 5c used by one of the San Bernardino shooters could also unlock the device in the Brooklyn case.

The filing comes after FBI Director James Comey acknowledged this week that the approach, developed by a mysterious third party, could not be used on more modern versions of iPhone.

“As the FBI Director recently indicated, the mechanism used in the San Bernardino case can only be used on a narrow category of phones,” said Emily Pierce, a spokesperson for the Justice Department. “In this case, we still need Apple’s help in accessing the data, which they have done with little effort in at least 70 other cases when presented with court orders for comparable phones running iOS 7 or earlier operating systems.”

The Justice Department cites previous cases, including one horrific child sexual abuse investigation in upstate New York detailed by the Wall Street Journal, and other involving child pornography in Washington, where Apple has responded to a court order to extract data from password-locked iPhones.

The Brooklyn case is one of a dozen pending cases in which Apple and the government disagree over the court’s authority to order the company to defeat the security of its own devices to aid in a criminal investigation.

Update: In this particular dispute, the government isn’t asking Apple to write software to undermine the encryption on one of its devices — as was the case in the FBI’s ongoing investigation into the Dec. 2 San Bernardino terrorist attack.

Here, the government wants Apple merely to extract information from an iPhone 5s used by a meth dealer in Queens who subsequently pled guilty to drug-related charges. Law enforcement says such insights might assist in sentencing the criminal or identifying conspirators.

Apple plans to continue fighting the government in court, pressing the FBI to show that it has exhausted all other technological avenues for extracting the information from the phone — rather than simply forcing the company to do the work.

The FBI made similar arguments in the San Bernardino case before announcing it had found a magic bullet 22 hours before a scheduled court confrontation over unlocking Syed Farook’s iPhone.

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