[Infowarrior] - Apple wasn't 'flouting' iPhone order, judge says

[Richard Forno]

Apple wasn't 'flouting' iPhone order, judge says

By Josh Gerstein and Tony Romm

03/22/16 09:35 PM EDT

http://www.politico.com/blogs/under-the-radar/2016/03/apple-iphone-justice-department-221127

RIVERSIDE, Calif. — Apple isn’t as much of a rebel as the Justice Department tries to portray — at least, according to the federal magistrate overseeing the government’s attempt to force Apple to help crack a locked iPhone used by one of the San Bernardino shooters.

Despite the skepticism, Apple’s request to overturn the original order in the case was denied Monday during a hearing in which the Justice Department asked the court to pause the proceeding so that investigators could try a new way to access the device without Apple's help.

“I certainly don't think, let me just comment, that Apple's been flouting the order,” Magistrate Judge Sheri Pym said Monday, according to a transcript obtained by POLITICO. “The order, essentially … pending a final decision, there's not really — it's not in a stage that it could be enforced at this point,” Pym said.

One of the company's top lawyers told the court that since a new solution could allow DOJ to access the phone without Apple, which Justice previously said it could not do, that "nullifies" the government's arguments in the case, so it should be vacated.

Pym would not go quite that far, but she did stay her initial ruling, which forced Apple to aid the FBI. And she made clear she doesn’t believe the tech company has defied the court by not immediately giving in to the government’s demands.

The government had asked Pym to hit the brakes Monday — hours before a scheduled court appearance Tuesday — after learning about a potential new way to access the device from an unnamed “outside party." The Justice Department did not explain its thinking, but it has argued in court for weeks that it needed Apple to write special software to gain entry to the iPhone tied to the San Bernardino attack in December.

Apple did not object to the request to postpone the court appearance, and the Justice Department now has until April 5 to update the court on its progress.

But prosecutor Tracy Wilkison and Apple attorney Ted Boutrous still sparred during the roughly 15-minute call, after Boutrous said the government had accused the company of defying its legal obligations.

“I can't exaggerate to you how — the perception, some of which I think has been reinforced by the government in their brief, that the company has been somehow doing something wrong,” Boutrous said.

“The government has really only been interested in trying to get into this phone and has done all of its filings and all of its work here in an effort to get into this phone and not saying anything nefarious about Apple,” Wilkison insisted.

Boutrous then cited a point in the government’s brief that says: “Apple’s rhetoric is not only false, but is corrosive of the very institutions that are best able to safeguard our liberty and our rights.”

Pym ultimately said she “was not going to take sides,” but she quickly added that she believes the legal filings from both Apple and the DOJ have included language intended more for public consumption — and, potentially, congressional lawmakers — than for the court.

“I think there's been multiple audiences that have been considered in litigating this case. I understand there are public policy considerations here, and that's part of what's at stake,” Pym said.

Josh Gerstein is a senior reporter for POLITICO.

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