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EncryptionFBI cannot force Apple to unlock iPhone in drug case: Judge

Published 1 March 2016

Magistrate Judge James Orenstein in Brooklyn on Monday ruled that the U.S. government cannot force Apple to unlock an iPhone in a New York drug case. The ruling strengthens the company’s arguments in its landmark legal confrontation with the Justice Department over encryption and privacy. The government sought access to the drug dealer’s phone months before a California judge ordered Apple to give access to the San Bernardino terrorist’s handset.

Magistrate Judge James Orenstein in Brooklyn on Monday ruled that the U.S. government cannot force Apple to unlock an iPhone in a New York drug case. The ruling strengthens the company’s arguments in its landmark legal confrontation with the Justice Department over encryption and privacy.

The New York Times reports that the government sought access to the phone in the Brooklyn case last October, a few weeks before the 4 December San Bernardino terrorist attack and a couple of months before a judge in California ordered Apple to give the FBI access to the phone used by one of the terrorists.

Judge Orenstein said he did not have the legal authority to order Apple to disable the security of an iPhone which was seized during a drug investigation.

Orenstein’s reasoning were similar to Apple’s arguments in the San Bernardino case, particularly his finding that a 1789 law called the All Writs Act cannot be used to force Apple to open the phone. Orenstein also found that Apple was exempt from complying with decryption requests by a 1994 law that updated wiretapping laws.

The Times notes that Magistrate Judge Sheri Pym, the judge in the San Bernardino case, is not be bound by Orenstein’s decision, a senior Apple executive, who insisted on anonymity, said it will likely influence her decision.

Still, the decision is not binding for the San Bernardino case, Eric A. Berg, a litigation lawyer and special counsel with Foley & Lardner, who is a former Justice Department lawyer, told the Times.

“From a technical, legal standpoint, it doesn’t really have much of an effect in the California districts,” Berg said. But “if you start with public opinion, this is going to be viewed as a victory for the privacy lobby and a defeat for the government in that battle over privacy.”

The Justice Department is “disappointed” in Orenstein’s ruling and plans to ask a higher judge within the same federal district to review the matter in coming days, a department representative said.

The defendant in the drug case has already pleaded guilty, but the Justice Department still believes the phone may contain evidence that “will assist us in an active criminal investigation,” the official said.

Orenstein stressed that his ruling in Apple’s favor was not a decision on “whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act (AWA) resolves that issue and many others like it yet to come.”

Orenstein concluded that “the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA’s constitutionality if adopted.”

He also wrote: “The implications of the government’s position are so far-reaching – both in terms of what it would allow today and what it implies about Congressional intent in 1789 – as to produce impermissibly absurd results.”

Orenstein also found that Communications Assistance for Law Enforcement Act, passed in 1994, exempted Apple from this sort of request.

Law enforcement sought to access to the drug dealer’s phone in 2015, while the case was pending. The dealer pleaded guilty in October, while Orenstein was weighing the government’s request, but both Apple and the Justice Department said they still wanted a ruling.

The Times notes that prosecutors have said that since 2008, Apple has complied with 70 such court orders based on the All Writs Act without objection. Many of those cases involved earlier iPhone models which did not require customized software to unlock.

Prosecutors say that the Brooklyn case was the first time Apple had objected to law enforcement efforts to use search warrants to get the tech company to provide assistance and unlock iPhones seized during investigations.

Since October, when Apple first asked Orenstein to deny the government’s request of access to the drug dealer’s phone, Apple has objected to helping law enforcement access at least twelve devices for which the Justice Department has sought the company’s help, according to a letter from Apple to Orenstein which was unsealed earlier this month.

“It’s important that a judge for the first time recognizes the All Writs Act doesn’t provide the lawful authority the government has been claiming in these cases,” said Esha Bhandari, a lawyer with the ACLU, which supports Apple’s position. “It demonstrates that when the government’s arguments are put to the test, a federal court has decided they were not actually right.”

The senior Apple executive who spoke with the Times said the company has never made a new piece of software in response to a government request.