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The DOJ Files their Official Reply with the Court that Continues to Request that Apple be required to unlock an iPhone 5s


The news last November was that "The DOJ's War with Apple & Google Heating up over Encryption." Then on October tenth we reported that DOJ found a case it wanted to challenge Apple on this issue, but the judge deferred his ruling until Apple was able to weigh in. Then on October twentieth we posted a report titled "Apple Legal Urged the Court to not require it to comply with the Justice Department's Request to unlock an iPhone." Late yesterday, the DOJ filed "The Government's Reply" on this matter with the court regarding "Order Requiring Apple Inc. to Assist in the Execution of a Search Warrant Issued by the Court." Below is the Preliminary Statement that the DOJ filed with the court (with all emphasis made by Patently Apple).


The DOJ's Preliminary Statement


The DOJ's official preliminary in full is as follows: "A magistrate judge in the Eastern District of New York has issued a warrant to search an Apple iPhone 5s for evidence related to the possession and distribution of methamphetamine.


The government has been unable to execute that warrant due to a passcode mechanism that prevents access to the phone's contents. The government conferred with Apple Inc. ("Apple"), and Apple confirmed, consistent with previous public statements, that it can bypass the lock screen for this device. Apple also provided the government with specific language to submit to the Court to obtain a lawful order for such a bypass. On October 8, 2015, the government submitted an application to this Court, using Apple's requested language, for an Order under the All Writs Act, 28 U.S.C. § 1651, requiring Apple to assist in bypassing the lock screen of the phone.


On October 9, 2015, this Court entered a Memorandum and Opinion deferring the government's application and directing Apple to state whether bypassing the lock screen of the phone would be technically feasible and, if so, unduly burdensome to Apple (the "October 9 Order"). Apple submitted its response on October 19, 2015, confirming that it is technically feasible to bypass the lock screen of the phone, but claiming for the first time that assisting in the execution of the warrant could be unduly burdensome and could "tarnish the Apple brand." The government now submits this brief in support of its Application and in reply to Apple's response.


The government respectfully requests that this Court grant the government's Application and order Apple to assist with execution of the search warrant. The government seeks evidence relevant to a defendant's guilt in a federal criminal case and a magistrate judge has already determined that the government has a sufficient basis to search for such evidence on the defendant's phone.


Absent Apple's assistance, the government cannot access that evidence without risking its destruction. But Apple can. Indeed, Apple has repeatedly assisted law enforcement officers in federal criminal cases by extracting data from passcode-locked iPhones pursuant to court orders.


Apple has acknowledged that it has the technical capability to do so again in this case. It musters only two reasons not to compel its assistance now: it invokes the costs associated with devoting employee time to bypassing passcode-locked iPhones involved in criminal activity and potentially to testifying in federal court — costs that are minimal in comparison to the profits Apple has earned from marketing the same phones; and it invokes the prospect that offering assistance to the United States government in a federal criminal investigation, pursuant to an order from a United States federal court, would "tarnish the Apple brand." Apple's arguments are without basis as a matter of law.


The government respectfully requests that this Court expedite its decision in this matter. The government seeks to obtain the evidence described in the underlying warrant in time to use it in a trial scheduled for November 16, 2015."


Later in the DOJ's filing they note: "As an initial matter, Apple has confirmed its ability to bypass the passcode and extract data from the Target Phone in this case. Thus, it is clear that an All Writs Act Order will facilitate execution of the warrant." 


And lastly the DOJ states that "The government has obtained a lawful search warrant for evidence of crime,  but unless this Court issues the requested order, that warrant will be meaningless, and legitimate interests in public safety and the rule of law will be thwarted."


Stay tuned for more on this developing story as the trial date of November 16 nears.


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