Justice Dept. Seeking Data from About 12 Other Apple iPhones

By Devlin Barrett

The Justice Department is pursuing court orders to force Apple Inc. to help investigators extract data from iPhones in about a dozen undisclosed cases around the country, in disputes similar to the current battle over a terrorist’s locked phone, according to people familiar with the matter.

The other phones are at issue in cases where prosecutors have sought, as in the San Bernardino, Calif. terror case, to use an 18th-century law called the All Writs Act to compel the company to help them bypass the passcode security feature of phones that may hold evidence, these people said.

The specifics of the roughly dozen cases have not been disclosed publicly, but they do not involve terrorism charges, these people said.

Privacy advocates are likely to seize on the cases’ existence as proof the government aims to go far beyond what prosecutors have called the limited scope of the current public court fight over a locked iPhone used by one of the San Bernardino shooters.

Law enforcement leaders, however, may cite the existence of the other cases as evidence that the encryption of personal devices has become a serious problem for criminal investigators in a variety of cases and settings.

In the San Bernardino case, the Federal Bureau of Investigation is trying to force Apple to help it beat the passcode system on a work phone used by Syed Rizwan Farook who, along with his wife, carried out a terror attack on his coworkers on Dec. 2 that killed 14 and injured 22. A judge has granted the Justice Department’s request for a court order directing Apple to help the FBI, and Apple is fighting the order.

Separately, federal prosecutors in New York are sparring with Apple over an iPhone seized in a drug investigation there. In that case, prosecutors filed a letter with U.S. magistrate judge James Orenstein late Monday that indicates there are other cases in which the government has obtained similar court orders, but the letter does not provide further detail.

“In most of the cases, rather than challenge the orders in court, Apple simply deferred complying with them, without seeking appropriate judicial relief,” the prosecutors wrote.

Apple argues that helping the FBI the way the bureau wants would endanger the privacy of its customers. “Forcing Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its customers,” the company has argued in court papers in the New York case.

In that case, prosecutors have criticized Apple for resisting their demands, saying the company for years complied with such orders until late last year, when Apple began asserting it should not be forced to provide such assistance. Prosecutors have been particularly critical of Apple’s contention that to help bypass the passcode feature would “tarnish the Apple brand.”

The judge in the New York case has asked whether it was legal for the government to force Apple to extract data from a locked phone–an indication to some legal experts that he is considering rejecting the government’s rationale.

The dozen other phones now the subject of legal battles were seized in a variety of criminal investigations, but they are not terrorism cases like the San Bernardino investigation, people familiar with the matter said.

The dozen or so cases are also distinct from San Bernardino in that many of them involve phones using an older Apple operating system, which has fewer security barriers to surmount, these people said.

But they are similar in the sense that the government is trying to force Apple through the courts to help investigators extract data from otherwise locked iPhones, these people said.

As the fight over the San Bernardino phone became public last week, federal prosecutors and the FBI said they are not seeking to set a precedent in the case, but to get the company to help them open a single phone that may hold crucial evidence to help explain the most deadly terrorist attack on U.S. soil since Sept. 11.

In a filing last week in the San Bernardino case, federal prosecutors argued the order they have obtained “is tailored for and limited to this particular phone. And the order will facilitate only the FBI’s efforts to search the phone… Nor is compliance with the order a threat to other users of Apple products.”

The same filing also argued that what is at stake in the case is permission for the government “to search one telephone of an individual suspected of being involved in a terrorist attack.”

Apple has directly challenged those claims.

“The government suggests this tool could only be used once, on one phone. But that’s simply not true,” Apple CEO Tim Cook wrote last week in a letter to customers. “Once created, the technique could be used over and over again, on any number of devices… The government is asking Apple to hack our own users and undermine decades of security advancements.”