After a magistrate in New York handed down a “disappointing” ruling freeing Apple from a Federal Bureau of Investigation (FBI) request to crack an iPhone central to a drug investigation, US Attorney General Loretta Lynch said Tuesday that the US Justice Department “will resubmit it to the court.”
Speaking at the RSA Conference in San Francisco, Lynch repeatedly stressed that the Cupertino, California based tech giant had worked with federal prosecutors in the past and expressed “surprise” over the company's resistance to orders in New York and California, the latter centred around an iPhone used by one of the San Bernardino terror suspects.
“This is a very different position for Apple,” Lynch said, contending the company has historically done a “good job” of protecting customer data even while using it for marketing purposes and responding to government data requests. She charged Apple “to do what it always has done and comply with law.”
Lynch reiterated the government stance that the FBI's request for Apple to build a way into a the phone used by San Bernardino shooter Syed Rizwan Farook is a one-off even as similar requests are pending for numerous iPhones. Nearly the same breath said that the “inability to access information that could actually save lives” is dangerous. Industry and government working together is critical in successfully combating violent extremism and the rise of the homegrown terrorist requires the collaboration of government and private industry, Lynch said, noting that going dark is a “very real threat” that tech must help thwart by preventing terrorists and criminals from finding the “safe harbour they seek within dark corners” of the internet.
Apple and its proponents have claimed that the government has overreached and that the San Bernardino request that prompted a California judge to order Apple to comply threatens to violate a handful of Constitutional amendments – the Fifth, First and Fourth. Lynch dismissed arguments that the of Fifth Amendment violations since Apple is not the subject of the Justice Department's investigation. “Apple is not a target … [and] is not accused of doing anything wrong,” Lynch explained. “They're a third party,” so there is “no self-incrimination” involved.
As for contentions that the First Amendment applies to code, Lynch said it bore discussion but was “not germane to this case.”
She acknowledged that getting to the information locked in the smart phones of suspected criminals and terrorists has thrust government and the private sector onto entirely new terrain, but praised the law for its “wonderful elastic quality” that made it applicable to current legal issues.
Federal prosecutors have based their authority to access data locked in devices on the All Writs Act, a 1789 law. But that position took a hit Monday when a federal judge in New York ruled that Apple didn't have to comply with a government request to unlock an iPhone confiscated in a drug investigation and took aim squarely at prosecutors' reliance on the All Writs Act.
At the Tuesday talk Lynch said that the Justice Department was in negotiations with the UK to create a framework for UK authorities to subpoena information from US coffers on British citizens under investigation, confirming rumours that have been swirling for months.