[Infowarrior] - iPhone judge focused on 'burden' on Apple

[Richard Forno]

iPhone judge focused on 'burden' on Apple

By Josh Gerstein

03/03/16 02:44 PM EST

http://www.politico.com/blogs/under-the-radar/2016/03/iphone-judge-focused-on-burden-on-apple-220180

The federal magistrate handling the government's demand that Apple help the FBI hack into an iPhone used by a dead terrorist is focused on the burden the request will place on the company, as well as the details of what's technically required to carry it out, according to a recording obtained by POLITICO.

During a telephone conference last month with Apple lawyers and federal prosecutors, U.S. Magistrate Judge Sheri Pym identified those issues as her primary concerns as the two sides and outside groups file a flurry of legal briefs in the high-profile legal fight.

"I am looking for full briefing on this and particularly with respect to, among other things...what technically is involved here, obviously going to the burden and some other issues," Pym declared during the Feb. 18 call. "I would like really as full a record as possible on this."

Most of the call was devoted to scheduling issues, but the exchange does shed some new light on the early maneuvering in the dispute over the phone used by one of the shooters in the San Bernardino terrorist attack last December. Prosecutors and the FBI want to force Apple to create software to disable the phone's self destruct feature and to allow the FBI to submit possible passcodes without the escalating delays that follow repeated unsuccessful attempts.

Pym was skeptical of the government plan to file a motion to compel in the legal fight even though it already filed a detailed pleading seeking the order against Apple and the order itself gave Apple five business days to object.

"I'm not really clear what it would accomplish here," the magistrate said about the government's planned motion. "I don't really see what the government would achieve by that."

A lawyer for Apple, Ted Boutrous, protested the planning filing, calling it "highly unusual and unnecessary and inappropriate."

"There's nothing to compel," Boutrous said on the call. "We've never seen anything like that happen where a party hasn’t even been able to assert its objection....We would ask the court to not permit that filing."

"It seems premature and out of place," said another attorney for Apple, Marc Zwillinger.

Assistant U.S. Attorney Tracy Wilkison said the motion was appropriate and necessary because Apple CEO Tim Cook had issued a public statement vowing to resist the government's request.

"I think that motion to compel really moves this forward," Wilkison said. She also said some of the delay in the case was due to the government's unsuccessful attempts to get Apple to agree to "voluntarily" help open the iPhone used by San Bernardino shooter Syed Farook.

Boutrous said Cook's statement wasn't inappropriate given that the U.S. Attorney's Office had also issued a press release and even the White House had weighed in publicly on the issue.

Pym ultimately agreed to accept the government's extra motion, but said she wasn't clear on how it advanced the dispute since she planned to hear that motion and Apple's protest of the order at the same hearing.

The feds initially proposed that the hearing take place March 8, but the magistrate agreed to Apple's request for more time to file briefs, including amicus filings that have already begun arriving.

"I am inclined to go with the schedule proposed by Apple" Pym said. "The phone here was seized over 2 months ago. I think the extra 2 weeks is not an unreasonable additional period of time."

While Apple has been vocal about its opposition to the government's request since it became public, the recording also confirms reports that Apple initially asked prosecutors not to make public court filings disclosing the dispute.

"We had asked the government to not go in ex parte, to not file it on the public record,” Boutrous said in the call last month. “Apple has been cooperating with the government and working with the government on the San Bernardino matter and has provided substantial assistance."

POLITICO obtained the recording of the call Wednesday after requesting it last week from the federal court.

Josh Gerstein is a senior reporter for POLITICO.


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