By Dan Levine
SAN FRANCISCO, March 29 – If the U.S. Department of Justice asks a New York court to force Apple Inc to unlock an iPhone, the technology company could push the government to reveal how it accessed the phone which belonged to a shooter in San Bernardino, a source familiar with the situation said.
The Justice Department will disclose over the next two weeks whether it will continue with its bid to compel Apple to help access an iPhone in a Brooklyn drug case, according to a court filing on Tuesday.
The Justice Department this week withdrew a similar request in California, saying it had succeeded in unlocking an iPhone used by one of the shooters involved in a rampage in San Bernardino in December without Apple’s help.
The legal dispute between the U.S. government and Apple has been a high-profile test of whether law enforcement should have access to encrypted phone data.
Apple, supported by most of the technology industry, says anything that helps authorities bypass security features will undermine security for all users. Government officials say that all kinds of criminal investigations will be crippled without access to phone data.
Prosecutors have not said whether the San Bernardino technique would work for other seized iPhones, including the one at issue in Brooklyn. Should the Brooklyn case continue, Apple could pursue legal discovery that would potentially force the FBI to reveal what technique it used on the San Bernardino phone, the source said.
A Justice Department representative did not have immediate comment.
In a statement, Apple said “we don’t know” the FBI’s technical solution, which vendor developed it or “what it allegedly achieves.”
A federal magistrate in Brooklyn last month ruled that he did not have authority to order Apple to disable the security of an iPhone seized during a drug investigation. The Justice Department then appealed to a district court judge.
After filing that appeal, U.S. prosecutors notified the magistrate in the San Bernardino case that a third party had demonstrated a new technique which could access the iPhone in question.
The Justice Department disclosed the new technique to the judge one day after the demonstration, and then confirmed its success on Monday, according to court filings, though it did not reveal how its solution works.
The U.S. government did not disclose any details in a letter to the Brooklyn judge on Tuesday. Instead, prosecutors only agreed with a request by Apple to delay briefing deadlines in the case, and said it would update the court by April 11 as to whether it would “modify” its own request for Apple’s assistance.
Law enforcement officials across the country have said they regularly encounter Apple devices they cannot access.
Hillar Moore III, the district attorney in East Baton Rouge, said he has asked the FBI whether its new technique would access an iPhone to help solve a murder case he is overseeing. Moore has not yet received an answer.
“Eventually we would like to know: Is this technology available to us, or is the third party going to sell it, and how much would it cost?” he said.