(ABC News) — Only days after abandoning its efforts to force Apple to help break into the iPhone of one of the San Bernardino shooters, the Justice Department declared today it is still pushing Apple to help break into an iPhone seized in a New York drug case.
“The government does not intend to modify” its previous requests to a federal court in New York asking that Apple be compelled to help, federal prosecutors wrote in a notice to a federal judge in the Eastern District of New York, adding that “The government’s application is not moot [so] the government continues to require Apple’s assistance in accessing the data that it is authorized to search by Warrant.”
A federal magistrate judge had previously denied the Justice Department’s initial request, but then prosecutors resubmitted their request to U.S. District Court Judge Margo Brodie, urging her to reconsider the other judge’s ruling.
While that was playing out in New York, the Justice Department abandoned its case filed in the Central District of California, where prosecutors had been trying to compel Apple to help them unlock an iPhone 5c left behind by Syed Farook, who along with his wife, Tashfeen Malik, launched a deadly assault on Dec. 2, 2015, killing 14 of Farook’s coworkers at a holiday party in San Bernardino, California. The Justice Department dropped the case after a private company found what FBI Director James Comey called “a solution” for cracking into the phone.
But Comey said that solution “doesn’t work” on an iPhone 5s, the type of device at the heart of the New York case. “So it’s just a very different situation” than the San Bernardino case, and “nothing has changed” in the New York case, a law enforcement official told reporters today.
“Apple has conceded that it has the technical capability” to extract data from the specific phone in the New York case, and Apple said it would only take “a matter of hours” to access that data, the law enforcement official said.
Attorneys representing Apple disputed the official’s account, saying they have long been willing to help law enforcement as long as there is a lawful order and as long as they are able to offer the assistance from their own files and servers — conditions the lawyers contend are not present in the New York case or the San Bernardino case.
The lawyers said they are disappointed but not surprised that the Justice Department is pushing forward in the New York case, repeating concerns that being compelled to create a way for authorities to hack even one iPhone could endanger other iPhones around the world.
In October, the Justice Department sought a motion to compel Apple’s compliance with a subpoena ordering the company to help the government extract data from an alleged drug dealer’s iPhone. But unlike the magistrate judge in San Bernardino case did, the Brooklyn magistrate judge refused to issue the order to compel.
At the time, a senior Apple executive said the ruling in the Brooklyn case was “on point” for the San Bernardino case.
The executive called the judge’s ruling a “thoughtful,” “cogent” and “masterly piece of analysis,” noting that the judge ruled against government arguments citing case law and the legislative history of the All Writs Acts, which has formed much of the basis for the government’s arguments in trying to force Apple to help in both the New York case and the San Bernardino case.
The executive also said the Brooklyn case is “undoubtedly” an important precedent in that “this is the first time that a court has looked specifically at this issue,” and sided with Apple.
The executive noted that the magistrate judge also said this is a matter that should be decided by Congress.
ABC News’ Emily Shapiro and Zunaira Zaki contributed to this report.