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Feds: Apple has unlocked iPhones "many times" before

Last Updated Feb 19, 2016 7:01 AM EST

While Apple has pushed back against the FBI by refusing to create a "backdoor" that could allow investigators to unlock the iPhone belonging to one of the San Bernardino terrorists, a 2015 court case reveals that the company has unlocked phones for the federal government "many times" in the past.

Between 2008 and 2015, Apple repeatedly complied with government requests to retrieve data from locked phones, federal prosecutors in New York argued recently while requesting a court order to access data on the iPhone of a suspect in a drug case.

The case involves a suspect named Jun Feng who is charged with possession and distribution of methamphetamine. Feng's iPhone 5s was seized under a search warrant, but investigators have not been able to unlock it.

"The government is not aware of any prior instance in which Apple objected to such an order," U.S. Attorney Robert L. Capers stated in court documents. "Indeed, Apple has repeatedly assisted law enforcement officers in federal criminal cases by extracting data from passcode-locked iPhones pursuant to court orders."

At a hearing on the case in Brooklyn on Monday, Assistant U.S. Attorney Saritha Komatireddy said Apple has complied with the government in "at least" 70 similar cases, Vice's Motherboard reports. However, the company is now taking a harder line and fighting the request to unlock Feng's iPhone, even though it was running older iOS 7 software that Apple could easily unlock.

That's in line with its stance in the San Bernardino case, although the technology is different in a significant way. The phones involved in the previous cases cited by prosecutors were running earlier versions of the iOS operating system that didn't have the same level of encryption -- technology that was put in place specifically to keep user data private, unaccessible even to Apple itself.

"Apple has definitely been more cooperative in the past. There have been lots of cases where Apple has allowed the government to get into phones, get access off of phones. They've complied with court orders in the past," NewYorker.com editor Nick Thompson told CBS News. "Now, what's different, though, is that Apple's new software means that in order for the FBI to get access to this terrorist's phone, it's not just about Apple giving them a key or giving them a code or handing over the data. It's about Apple actually constructing something from scratch that would allow the FBI to get into that phone."

When it comes to the San Bernardino case, Apple has argued that encryption is key to maintaining trust with its users and ensuring that their information remains safe from the hands of third parties.

"For many years, we have used encryption to protect our customers' personal data because we believe it's the only way to keep their information safe," Apple CEO Tim Cook wrote in a public letter to customers. "We have even put that data out of our own reach, because we believe the contents of our iPhone are none of our business."

Thompson said that Apple is distinguishing the San Bernardino case from those in the past by declaring that "We're taking this principled stand in part because you're asking us to use malware" -- to create software specifically to break into a user's device.

FBI Director James Comey told members of Congress last week that being unable to access data from the killers' iPhone in the San Bernardino case poses "a big problem" for investigators.

"It is a big problem for law enforcement armed with a search warrant when you find a device that can't be opened even when a judge says there's probable cause to open it," Comey said. "It affects our counterterrorism work. San Bernardino, a very important investigation to us, we still have one of those killers' phones that we have not been able to open, and it's been over two months and we're still working on it."

In his court filing in the Brooklyn drug case, Capers writes that complying with his request "would not require Apple to make any changes to its software or hardware." Instead, "It would simply require Apple to use its existing capability to bypass the passcode on a passcode-locked iOS 7 phone, consistent with its previously stated public policy, and as it has routinely done so many times before."

He suggested Apple may be refusing now as a public relations tactic, saying the company "invokes the prospect that offering assistance to the United States government in a federal criminal investigation, pursuant to an order from a United States federal court would 'tarnish the Apple brand.'"

For its part, Apple has said that these current calls to access phone data stand in stark contrast to the company's mission of keeping user data secure.

"Right now, Apple is aware that customer data is under siege from a variety of different directions," Apple lawyer Marc Zwillinger told reporters at the end of the Brooklyn hearing, according to Vice. "Never has the privacy and security of customer data been as important as it is now."

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    Brian Mastroianni covers science and technology for CBSNews.com