WASHINGTON — In the latest volley in its high-profile fight with Apple, the Justice Department said on Monday that a federal judge in Brooklyn had erred last week in refusing to order the company to unlock a drug dealer’s iPhone.
“Apple is not being asked to do anything it does not currently have the capability to do,” Justice Department prosecutors said as they appealed the decision made last week by Magistrate Judge James Orenstein of Federal District Court for the Eastern District of New York.
Lawyers and analysts on both sides of the encryption debate are watching the Brooklyn case closely because they believe it could foreshadow many of the legal questions that will be debated in the case involving an iPhone used by one of the San Bernardino, Calif., attackers.
The two cases are very different in some ways — one involves a high-level terrorism investigation, the other an inquiry into a low-level drug dealer — but both center on whether the Justice Department can use a 1789 statute to force Apple to unlock an iPhone.
Unlocking the iPhone in the Brooklyn case would be far easier for Apple, because it involves a 5s model running an older operating system with simpler encryption.
In the San Bernardino case, Apple lawyers say the company would have to create an entirely new program to get into the iPhone 5c used by Syed Rizwan Farook, who along with his wife killed 14 people in a December rampage.
While Judge Orenstein ruled against the Justice Department prosecutors in Brooklyn, they are much more optimistic about their chances of winning in the San Bernardino case. If they can get the Brooklyn ruling delayed at the district court level, they hope to get a much more favorable ruling in California — with potentially far-reaching implications.
Indeed, the San Bernardino case offers prosecutors what they believe is a strong test case to establish the government’s power to force a technology company to unlock its own encryption.
Among the factors they cite: The California rampage was the biggest terrorist attack on American soil since Sept. 11, 2001; Mr. Farook is dead; and the phone was owned by his employer — San Bernardino County, where he worked as an environmental health specialist.
“The government certainly believes they have a very strong set of facts in San Bernardino,” said Eric A. Berg, a former Justice Department lawyer who now works on electronic surveillance issues at a Milwaukee law firm. The Brooklyn case, on the other hand, “muddies the waters for them in what they’re trying to do.”
But Apple and its supporters argue that forcing the company to create what they say is a “back door” around its own encryption controls would set a dangerous precedent and threaten the security of hundreds of millions of users. In an unusual show of support, some 40 companies and organizations have filed friend of the court briefs in support of Apple’s position.
Michael Sussmann, a Washington lawyer and former Justice Department prosecutor who works on electronic surveillance cases, said he thought it was doubtful that the Supreme Court would step into the fray anytime soon, even if conflicting rulings emerged in New York and California.
“The Supreme Court likes these cases to percolate in the lower courts for a while and let the law be made and observe how it’s made before stepping in,” he said.