The Massachusetts branch of the American Civil Liberties Union on Thursday asked a federal judge in Boston to unseal documents related to the Justice Department’s effort to break into the iPhone of an alleged member of a notorious city gang.
The motion, filed in US District Court, is part of a broader effort by the civil liberties group to reveal the full extent of the US government’s controversial campaign to make Apple Inc. bypass the security protections of its iPhones.
It’s the latest development in a nationwide controversy that began in February, when Apple refused to help the authorities break into an iPhone used by Syed Farook, who was killed in a gun battle after he and his wife murdered 14 people in a terrorist attack in San Bernardino, Calif.
But unlike in the Farook case, in which the government’s request for Apple’s help was filed in open court, in the Boston case the ACLU believes that key documents are sealed and unavailable to the public — even to the attorney representing the accused.
“It’s a matter of public interest,” said Rudolph Miller, the attorney for reputed gang member Desmond Crawford, who is planning to file a similar motion by Friday. “Plus my client has an interest in learning about the government’s attempt to obtain his records so he can protect his God-given constitutional rights.”
Officials at the Justice Department declined to comment.
The national ACLU says it has uncovered 63 cases since 2008 in which the federal government invoked the All Writs Act to demand that Google, maker of the Android smartphone system, and Apple unlock phones running their software. The All Writs Act is a federal statute dating to 1789 that gives courts wide latitude to force cooperation with a government agency’s demands for information or assistance.
In a similar iPhone case in Brooklyn, a federal magistrate judge in February ruled in Apple’s favor on an All Writs Act request involving a phone seized in a drug-trafficking case. In San Bernadino, a federal judge had ordered Apple to cooperate, but in March the United States dropped its request, saying it had found a way into Farook’s phone on its own.
In nearly all such cases, the docket sheets invoking the All Writs Act have been made public. But no such filing has been found in the Massachusetts case. The state ACLU and Miller suspect that such a document has been filed under seal, making it effectively secret.
“The public and the media have a First Amendment right to docket sheets that can only be overcome when the government has a compelling interest,” said Jessie Rossman, a staff attorney at the ACLU of Massachusetts.
The group’s filing asks the court to open any sealed docket sheets related to the effort to force Apple to unlock Crawford’s phone. If such docket sheets don’t exist, the ACLU wants its petition declared moot “so that members of the public will know that they are not being kept in the dark about this crucially important matter.”
Miller said the motion could reveal whether the FBI has used the same method to access Crawford’s phone as it did with Farook’s, and what information they have gathered.
US Magistrate Judge Marianne B. Bowler approved a warrant in February allowing investigators to search an iPhone and a second cellphone seized from Crawford, who the FBI says is a member of the Columbia Point Dawgs and the likely triggerman in the shooting of a rival gang leader.
Among the few documents that have surfaced publicly in the Crawford case is an affidavit from FBI agent Matthew Knight that said he needed Apple’s help getting into the passcode-locked iPhone 6 Plus. Knight said the phone may contain phone numbers, text messages, and other data related to Crawford’s drug trafficking as well as plans for the drive-by shooting.
Based on wiretapped phone conversations, “I . . . know that Crawford used his [iPhone] to discuss details related to the shooting of a rival gang member,” Knight wrote in his affidavit.
Crawford was arrested in November as part of a federal crackdown on the Columbia Point Dawgs, one of Boston’s most notorious street gangs. Crawford is charged with committing violent crimes in aid of racketeering, for his alleged involvement in the shooting of a rival gang member.