Apple supporters claim momentum in fight over unlocking iPhones

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Apple supporters are a hailing a New York court ruling as a big win in the company’s battle against a federal order demanding that it unlock the iPhone of one of the San Bernardino shooters. 

“Apple: 1. Government: 0,” said Scott Vernick, head of the data security and privacy practice at Fox Rothschild.

On Monday, U.S. Magistrate Judge James Orenstein denied the federal government’s request for a court order compelling Apple to help it unlock an iPhone belonging to Jun Feng, who was charged with drug trafficking.

Onlookers, including Apple, say that Orenstein’s decision sets an important, if non-binding, precedent that could have a significant impact on how California judge Sheri Pym rules on the case involving San Bernardino shooter Syed Rizwan Farook.

Because of the many parallels between the two cases, a senior Apple executive told reporters on Monday, “it’s going to have some persuasive effect for the magistrate in California. I think she will read it, I think she will analyze the arguments and I think that she will be persuaded by the arguments.” 

The government’s New York request hinged on the same 18th-century law that it is citing to force Apple to write software disabling certain key security provisions on Farook’s phone.

The 1789 All Writs Act allows federal judges to compel others to help the government perform its duties, so long as requests are “agreeable to the usages and principles of law,” Orenstein writes.

But, he writes, under those conditions “the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.”

This is because a different law, the Communications Assistance for Law Enforcement Act, or CALEA, already gives law enforcement a legal pathway to extract data from companies’ devices — but it doesn’t cover “information services” companies like Apple. 

Congress has debated amending the law to include tech companies like Apple and Google, but it hasn’t acted. Orenstein agreed with Apple in his opinion that the company’s omission from CALEA constitutes a conscious decision by Congress. 

Supporters of Apple’s position in the San Bernardino case have immediately latched onto this analysis as supportive of their position that if the FBI gets what it wants, it will have inappropriately bypassed Congress to expand the usage of the law. 

“I think we can acknowledge that if you succeed, you will have won the authority to access encrypted devices at least for now,” Judiciary Committee ranking member Rep. John Conyers (D-Mich.) said to FBI Director James Comey during a Tuesday hearing on the matter.

Comey has repeatedly argued All Writs is an appropriate tool that government has “used for hundreds of years so that courts can have their orders' given effect.” 

Apple hopes that Pym will come to the same conclusion. 

“The logic that enabled a judge in the Eastern District of New York to find that Apple is correct in arguing that the government does not have the authority to seek what it is asking for would apply even more to the circumstance we face in San Bernardino,” the Apple official said Monday.

Seemingly bolstering arguments that the case will impact Pym’s decision is Orenstein’s assessment that, technologically, the government’s demands regarding Farook’s phone are much higher than its demands regarding Feng’s. 

In New York, the government wanted Apple to simply unlock the device, which was running the older iOS 7 operating system. Apple has said it is technically capable of doing so, but would only do so under court order.

In California, the FBI wants Apple to write a piece of software that would override an iOS 9 failsafe on Farook’s iPhone 5s, allowing the FBI to then hack into the device. Because the phone is running a newer operating system with stiffer encryption, neither Apple nor the FBI can unlock the phone without creating a new operating system.

The software does not currently exist and Apple contends that it is “too dangerous to create.”

Critics of the FBI’s position have repeatedly argued that forcing a private company to manufacture a deliberately flawed product is an Orwellian overreach under All Writs, which requires that requests not be “unduly burdensome.”

Orenstein wrote in his Monday decision that what the government is seeking in California constitutes “more intrusive relief” than what it demanded in New York.

The Apple executive has argued that the finding, which appears in a footnote, “does support our position.” Outside onlookers seem to agree.

“If one judge found something less intrusive to be impermissible, then it would stand to reason that some other judge would find something that is more intrusive to be impermissible,” Vernick said.

The FBI, meanwhile, has sought to characterize its attempts to gain access to locked devices as unique to each investigation. Comey has repeatedly argued that the San Bernardino case only impacts Farook’s phone.

“The FBI focuses on case and then case and then case,” he said last week. “The San Bernardino litigation is not about us trying to send a message or establish some precedent, it really isn’t. It’s about trying to be competent in investigating something that is an active investigation.” 

As for the New York case, he said Tuesday that he had not yet read Orenstein’s opinion. 

The Department of Justice has already asked that the judge review his decision. 

“This phone may contain evidence that will assist us in an active criminal investigation, and we will continue to use the judicial system in our attempt to obtain it,” the Justice Department said in a statement reacting to Monday’s decision.