In appeal, Feds keep pushing Apple to unlock phones in Brooklyn, Boston cases

In appeal, Feds keep pushing Apple to unlock phones in Brooklyn, Boston cases
with CNBC and NBC News 1 Hour Ago

While the FBI has moved on from a case to unlock an alleged terrorist's iPhone, ongoing cases in New York in Boston are far from resolved.

A judge recently ordered Apple to help bypass an iPhone passcode in the trial of an alleged Boston gang member, according to newly-unsealed documents obtained by NBC News.

"To the extent that data on the Device is encrypted, Apple may provide a copy of the encrypted data to law enforcement but Apple is not required to attempt to decrypt, or otherwise enable law enforcement's attempts to access any encrypted data," the judge said, suggesting that the FBI should be provided with the unlock code for the phone.

Apple has yet to file an opposition to the Boston case, but it comes on the heels of hotly-contested legal battles over other phones.

The U.S. Justice Department on Friday said it will move ahead with a separate appeal of a court ruling blocking the government from forcing Apple to help unlock an iPhone in a different drug case in New York.

In a letter filed in federal court in Brooklyn, New York, the Justice Department said "the government continues to require Apple's assistance in accessing the data that it is authorized to search by warrant."

Apple, skeptical that the FBI cannot unlock the phone independently, plans to file a brief next week contesting the New York appeal, attorneys told CNBC Friday, calling the case a "shell game" that was trying to set precedent. Apple attorneys compared the New York case to the high-profile battle over the San Bernardino shooter's phone, calling the two cases "equally disturbing."

The letter came a day after Federal Bureau of Investigation Director James Comey said the agency's secret method for unlocking an iPhone 5c used by one of the San Bernardino shooters will not work on other models.

Those models include the iPhone 5s, the type of phone at issue in the case pending in Brooklyn. Apple has said it has the capability to access that phone but has fought against a U.S. bid for its help doing so.

The Justice Department said in March it had unlocked the San Bernardino shooter's iPhone with the help of an unidentified third party and dropped that case against Apple.

Left unanswered was whether the Justice Department would continue to appeal a Feb. 29 ruling by U.S. Magistrate Judge James Orenstein finding he did not have authority to order Apple to disable the security of an iPhone seized in a drug probe.

But in its letter on Friday, the Justice Department said its application "is not moot." A law enforcement official told reporters that iPhones like the one in the Brooklyn case cannot be accessed with the San Bernardino technique.

The phone in the Brooklyn case belonged to Jun Feng, who has since pleaded guilty to participation in a methamphetamine distribution conspiracy. The Justice Department sought to unlock Feng's phone to find other conspirators.

Unlike the phone used by Rizwan Farook in San Bernardino, Feng's phone had an older operating system, iOS 7, which is not protected under the same encryption technology.

Apple is scheduled to file papers in opposition of the Justice Department's appeal by April 15.

— Reporting by CNBC's Megan Hawkins and NBC News' Tom Winter and Pete Williams. Anita Balakrishnan contributed to this report.


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