A federal judge has denied a government motion to force Apple to unlock an iPhone – but it’s not in the San Bernardino (California) case. Still, the ruling could have implications for Apple’s current battle with the FBI over San Bernardino shooter Syed Farook’s iPhone 5c.
In the US District Court for the Eastern District of New York, Magistrate Judge James Orenstein ruled on Monday that the All Writs Act is being applied overly broadly by the Government.
The New York case concerns an iPhone 5s used by a meth dealer (who later pleaded guilty), but it’s running iOS 7. Since that version of iOS isn’t encrypted by default, Apple could extract the data without needing to break the phone’s passcode. In the California case, by contrast, Farook’s iPhone 5c is running iOS 9, so the FBI wants Apple to write new software that would allow law enforcement to brute-force the passcode, since that’s the only way of unencrypting the phone’s data.
But Apple is making a similar legal argument in both cases, that the Government shouldn’t be using the All Writs Act to issue these warrants. That law, first passed in 1789 and updated most recently in 1948, authorises the Government to issue warrants that aren’t covered by other existing statutes. Apple says that the Communications Assistance for Law Enforcement Act (CALEA), which outlines specific guidelines, is more appropriate, or a new law yet to be passed.
Judge Orenstein wrote of the All Writs Act, “[T]he established rules for interpreting a statute’s text constrain me to reject the Government’s interpretation that the AWA empowers a court to grant any relief not outright prohibited by law.” Later the ruling continues, “The relief the Government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.”
To determine if the All Writs Act applies, the judge also considers the same three-pronged test mentioned by the Department of Justice in a 19 February filing in the San Bernardino case. But after reviewing both sides’ arguments, Orenstein writes, “I conclude that none of those factors justifies imposing on Apple the obligation to assist the government’s investigation against its will. I therefore deny the motion.”
Why this matters: The judge in California, Magistrate Judge Sheri Pym, may not come to the same conclusion as Orenstein, who is considered by some to be an activist judge in matters of surveillance. “He’s clearly a judge who is interested in opening topics to discussion in the judiciary, but he also thinks the larger public should know about the debate,” said Brian Owsley, a former magistrate judge in Texas, to The Washington Post last year.
Apple’s senior VP and chief legal counsel Bruce Sewell will highlight the All Writs Act argument in his testimony to the House Judiciary Committee on Tuesday, as seen in his prepared opening remarks released Monday morning.