Apple uses FBI director's words against him in NY iPhone case

The company doesn't want to unlock an iPhone for the FBI in a case involving a confessed drug dealer in Brooklyn. It's part of an ongoing feud over how to balance public safety with digital privacy.

Laura Hautala
Shara Tibken Laura Hautala
Shara Tibken Former managing editor
Shara Tibken was a managing editor at CNET News, overseeing a team covering tech policy, EU tech, mobile and the digital divide. She previously covered mobile as a senior reporter at CNET and also wrote for Dow Jones Newswires and The Wall Street Journal. Shara is a native Midwesterner who still prefers "pop" over "soda."
Laura Hautala
Laura Hautala Former Senior Writer
Laura wrote about e-commerce and Amazon, and she occasionally covered cool science topics. Previously, she broke down cybersecurity and privacy issues for CNET readers. Laura is based in Tacoma, Washington, and was into sourdough before the pandemic.
Expertise E-commerce, Amazon, earned wage access, online marketplaces, direct to consumer, unions, labor and employment, supply chain, cybersecurity, privacy, stalkerware, hacking. Credentials 2022 Eddie Award for a single article in consumer technology
3 min read
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Apple threw the words of FBI Director James Comey back in his face Friday as part of a battle with the Department of Justice over unlocking an iPhone.

In documents filed in federal court in Brooklyn, New York, Apple objected to the government's demand that the company help investigators unlock the phone. For one thing, the courtroom isn't the right place to solve the problem, Apple said.

And so did Comey, at a conference held at Kenyon College earlier this month.

"[L]itigation is a terrible place to have any kind of discussion about a complicated policy issue," Apple quoted Comey as saying, "especially one that touches on our values, on the things we care about most, on technology, on trade-offs and balance."

Apple also questioned whether the US truly needs its help, given that the government was able to crack a different iPhone in a separate case without the company's assistance. In that case, the DOJ also said it needed Apple's help. But at the eleventh hour before a hearing on the matter, the DOJ told the court it had found a way to use a third party to open the phone of a terrorist who was involved in a mass shooting in California last year.

The cases are just two of many in which government investigators want a tech company's assistance in accessing user data that's been encrypted, or scrambled so it can be read only when unlocked with the proper key.

The DOJ last week told the court it will appeal a ruling from late February that Apple didn't have to help unlock an iPhone 5S used by a drug dealer. The man involved in the case confessed his crimes and is being sentenced in May.

An Apple attorney, speaking with reporters last week on the condition of anonymity, said that while the company was disappointed that the government decided to pursue the case in New York, Apple wasn't surprised. That's because CEO Tim Cook and his team believe the US is trying to set a precedent in forcing Apple to help law enforcement unlock iPhones.

The New York case is one of a number in which the US has looked to Apple to help bypass security on iPhones. The most notable involved an iPhone 5C tied to the San Bernardino, California, terrorist attack in December. In that case, after fierce resistance by Apple, the government ended up getting a work-around from an unnamed third party. The work-around applies only to the 5C and not to later models of the iPhone. The FBI still hasn't told Apple how it got into the phone.

Watch this: As encryption battle heats up on the Hill, FBI says iPhone hack limited to 5C

In both the New York and California cases, the US has relied on the two-century-old All Writs Act to compel Apple to help. A New York judge determined the act couldn't be used to force Apple's hand, something the DOJ wants reversed. It's up to individual courts around the country to determine whether Apple should assist or not.

The New York and California cases have some notable differences.

In the New York case, the phone is a higher-end iPhone than the device used in San Bernardino -- a 5S versus a 5C. The 5S has a fingerprint reader, which provides tougher security. But the phone is running iOS 7 compared with iOS 9 in the California case. Apple's two-year-old software has less-stringent security controls, which should make it easier to get data off the phone.

And in the New York case, the FBI wants Apple to extract data from the iPhone 5S, not help determine the passcode, like it did in California. Apple would have had to create new software to bypass its own device security for the iPhone used by the San Bernardino terrorist. Cook argued that doing that would be an undue burden and put all iPhone users at risk. In New York, Apple wouldn't have to create entirely new software to get information off the device.

The California case turned the previously private dealings between Apple and the FBI into a public battle and started a broader debate about privacy and security.

Technology companies and rights groups argue that strong encryption is needed to keep people safe and protect privacy. Law enforcement argues it can't fight crimes unless it has access to information on mobile devices.

Correction, 3 p.m. PT:This story originally misstated the forum for FBI Director James Comey's comments as quoted in Apple's filings. Comey was speaking at a conference at Kenyon College.