The FBI and the Department of Justice have used a strong narrative to defend their case in the dispute between the FBI and Apple. The FBI wants Apple to unlock an iPhone 5c belonging to one of the terrorists involved in the San Bernardino shooting. According to the FBI, it’s just about one iPhone. And yet, that argument doesn’t have too much credence given that there are currently 12 other active cases involving iPhones and iPads running iOS 6 to iOS 9.
A federal judge in New York has asked Apple to provide a list with other active cases involving password-protected devices. The list was unsealed on Tuesday. The difference between these cases and the San Bernardino one is that these 12 other cases were filed in private.
Michael A. Scarcella, editor at The National Law Journal, shared it on Twitter. Here it is:
Let’s look at what the Government has been saying for the past week. “The Order requires Apple to assist the FBI with respect to this single iPhone used by Farook by providing the FBI with the opportunity to determine the passcode,” the Department of Justice wrote in its motion. While technically true, the Government has used this narrative that “it’s just a phone” over and over again.
During a media briefing, a White House representative emphasized the fact that this was just about one iPhone.
And yet, Apple has had these requests for a while as we can see in today’s list. The company objected to these All Writs Act orders in order to see if the Department of Justice would follow up with other arguments. According to the WSJ, these cases are stalling because of the current public conflict between the FBI and Apple.
In the San Bernardino, it’s worth noting that Apple initially asked the FBI to file the request regarding in private. But now it’s clear the FBI wanted to use this opportunity to make this a public debate to force Apple’s hand.
The FBI and the Department of Justice have been trying to spin the story in their favor, leveraging a terrorist attack to make Apple comply with a privacy-invading request.
Apple’s filing came with the following letter from an Apple lawyer:
Dear Judge Orenstein:
I write in response to this Court’s February 16, 2016 order (the “Order”) requesting that Apple provide certain additional details regarding other requests it has received during the pendency of this matter that are of a similar nature to the one at issue in the instant case.
As recently as yesterday, Apple was served with an order by the United States Attorney’s Office for the Central District of California. (See Exhibit A.) The government obtained that order on the basis of an ex parte application pursuant to the All Writs Act (see Exhibit B), regarding which Apple had no prior opportunity to be heard (despite having specifically requested from the government in advance the opportunity to do so). The attached order directs Apple to perform even more burdensome and involved engineering than that sought in the case currently before this Court— i.e., to create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein. (See Exhibit A.) As invited by the California court’s order, Apple intends to promptly seek relief. But, as this recent case makes apparent, the issue remains quite pressing.
In addition to the aforementioned order, Apple has received other All Writs Act orders during the pendency of this case, certain details of which are set forth in the table below. In particular, for each such request Apple provides the following categories of information requested in the Order:
With respect to the other categories of information sought in the Order (specifically, categories 4-6), Apple responds that following its objection or other response to each request there has not been any final disposition thereof to Apple’s knowledge, and Apple has not agreed to perform any services on the devices to which those requests are directed.