Apple Inc (AAPL.O) told a U.S. judge that obtaining data saved on a fast iPhone would be “hopeless” with devices using its latest operating system, but the firm has the “technical ability” to help law enforcement unlock older phones.
In court documents, Apple said that for the 90 percent of its devices running iOS 8 or higher, granting the Justice Department’s request “would not be possible to perform” after it fortified encryption systems.
Those apparatus incorporate a characteristic that prevents anyone without the apparatus’s passcode from obtaining its data, including Apple.
The characteristic was embraced amid heightened privacy concerns following leaks by former National Security Agency contractor Edward Snowden in 2014.
But it encouraged the judge to never require it to obey the request of the Justice Department.
“Driving Apple to extract data in this case, absent clear legal authority to do so, could threaten the trust between Apple and its own customers and greatly tarnish the Apple brand,” Apple’s lawyers wrote.
Earlier this month, Orenstein expressed skepticism about whether he could require Apple to disable security mentioning Congress’ failure to act on the issue of encryption regardless of the urging of Federal Bureau of Investigation and the Justice Department.
Orenstein deferred opinion until Apple had a chance to say if it was “technically feasible and, if so, whether compliance with all the proposed order will be unduly burdensome.”
Apple in its brief said it limited its perspectives to those questions rather than the more comprehensive legal issue at hand, which it called “significant.” In an order Tuesday, Orenstein invited that issue to be addressed by Apple. A hearing is scheduled for Thursday.
The case is In re Order requiring Apple, Inc to assist in the performance of a search warrant issued by the court, U.S. District Court, Eastern District of New York, No. 15-mc-01902.