Back in February, when Apple and the FBI were still gearing up to face off in a court battle over the extent to which Apple could be compelled to assist the agency in its efforts to break into a secured smartphone, Apple scored a separate victory on a similar case in a New York court. There, the judge ruled that the government’s attempt to force Apple’s assistance relied on an overly broad interpretation of the All Writs Act. The feds didn’t like the sound of that, and have since appealed the ruling to a higher court. Today Apple filed its response to that action, and the language the company is using suggests that the FBI may have done itself a disservice by concluding the San Bernardino case in the way it did.

Apple argues that, “The government has utterly failed to demonstrate … that it exhausted all other avenues for recovering the information it seeks,” continuing, “Before the government demands that Apple do the work of law enforcement, the government must offer evidence that it has performed an ‘exhaustive search’ and that it remains unable to obtain the data it seeks without Apple’s assistance.

It’s difficult to read that without thinking of the FBI’s ultimate success in cracking the San Bernardino iPhone – there the government demanded Apple’s assistance, and after a very public clash with the company, was able to get into the iPhone on its own (well, with a little outside help, but not Apple’s). That certainly appears to set a precedent for the government failing to perform its due diligence in attempting to access devices itself before making legal demands of private companies for help.

Then again, the details of this case are different, as is the iPhone in question: an iPhone 5s, which unlike the San Bernardino iPhone 5c, does support a secure enclave through its SoC. That may end up shifting the balance of responsibility in this case, though we’ll have to wait for this appeal to go through before we know for sure.

Source: The Wall Street Journal

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