Apple Goes to Washington With Some Wind in Its Sails


When members of Congress grill Apple Inc. Tuesday on its refusal to help the FBI unlock a terrorist’s iPhone, the company will be fresh from a courtroom ruling that the U.S. is seeking “a mechanism for upending the separation of powers,” that it’s afraid “open legislative debate might produce a result less to its liking” than the courts, and that it is arguing an “absurdity.”

“It’s a very good sign for Apple,” said Alex Abdo, a staff attorney with the American Civil Liberties Union.

On Monday, U.S. Magistrate Judge James Orenstein in New York denied the government’s bid to force Apple to help it gain access to another iPhone, one that belonged to a drug dealer. The ruling doesn’t constitute a legal precedent and doesn’t bind the California judge considering the FBI’s request. In that case, Magistrate Judge Sheri Pym ordered Apple to comply with the U.S. even before giving it a chance to weigh in.

But Orenstein’s finding that the government’s demand was impractical and excessive will help frame the debate as it continues to play out in courtrooms across the country, likely at the Supreme Court and, starting this week, on Capitol Hill.

The decision “lays out in excruciating detail for the government all the reasons why they’ve overreached here,” said Albert Gidari, director of privacy at the Center for Internet and Society at Stanford Law School. “I think Apple feels pretty good.”

The ruling should help in the California case because Orenstein fully supported Apple’s arguments, a company executive said in a call with reporters.

Road Map

“This definitely does strengthen Apple’s hand,” said Kristen Eichensehr, a visiting assistant professor at the UCLA School of Law. “The California case actually requires Apple to write software [to help the government unlock the phone]. The fact that the magistrate judge in New York found that even the less demanding order that the FBI is seeking there is an undue burden on Apple suggests that the more burdensome order in California violates the standard for the All Writs Act.”

The All Writs Act is a law, dating back to 1789, that prosecutors have used in demanding Apple help them gain access to data on locked phones.

Eichensehr said that Orenstein’s decision “lays out a road map for future judges” and that it is so strong “it’s possible that judge Pym will reconsider.”

The Justice Department, which plans to appeal, said in an e-mailed statement: “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.”

‘Obnoxious to the Law’

For months, Apple has rebuffed U.S. requests for help in cracking encrypted iPhones to solve or prevent crimes. The battle burst into public view after Pym issued her order last month, over an iPhone used by one of the shooters in December’s terror attack in San Bernardino, California. The House Judiciary Committee then took up the matter.

After aiding prosecutors in unlocking at least 70 iPhones, Apple last year said it didn’t want to serve as the government’s helper anymore. Chief Executive Officer Tim Cook said in a blog post on Apple’s website in mid-February that U.S. demands for iPhone access were a “chilling” attack on privacy. The government said Apple was more concerned about its marketing and brand identity than about public safety. On Monday, Orenstein said prosecutors has failed to make their case.

“It would be absurd to posit that the authority the government sought was anything other than obnoxious to the law,” he wrote in a 50-page opinion.

The ACLU’s Abdo, who is with the group’s Speech, Privacy and Technology Project, observed that the opinion is “technically not binding, it’s just one judge’s view” but said it is “meticulous, it’s scholarly” and therefore “should guide any judge’s analysis.”

Supreme Court

The Brooklyn decision is sure to embolden Apple General Counsel Bruce Sewell as he prepares for his congressional testimony. At a minimum, it offers Apple a legal basis for defying the government. Down the line, it could even inform a Supreme Court decision.

FBI Director James Comey and Manhattan District Attorney Cyrus R. Vance Jr. are also due to appear before the House Judiciary Committee on Tuesday, to defend the government’s push for more access to encrypted smartphones. While the FBI has stressed that the California case is about only the one phone, Vance has said Apple’s stance has stymied numerous other investigations.

That cuts both ways.

“The government has already secured such assistance at least 70 times before filing the instant petition,” and “it clearly intends to continue seeking assistance that is similarly burdensome, if not far more so, for the foreseeable future,” Orenstein wrote in Monday’s decision.

With Apple and other companies building ever more robust encryption, the outcome of the Brooklyn and California cases could have a lasting impact on personal privacy, national security, law enforcement and the technology industry. Orenstein is one of the first judges to thoroughly explore what the government can and cannot access in these realms.

The government’s “preferred reading of the law” would transform the All Writs Act “from a limited gap-filling statute that ensures the smooth functioning of the judiciary into a mechanism for upending the separation of powers,” he wrote.

Echoing comments Cook made last month, Orenstein said the government should go to Congress for authority to access encrypted phones. How best to balance privacy and security “is a matter of critical importance to our society,” Orenstein wrote. Legislators, not judges, are best equipped “to consider the technological and cultural realities of a world their predecessors could not begin to conceive.”

‘Profit Over Safety’

In the Brooklyn case — one of at least a dozen across the country in which Apple has recently declined to help investigators get into an iPhone — prosecutors are seeking help bypassing the user’s pass code and downloading the data from an older operating system, iOS 7. The phone in California runs a newer operating system with tighter encryption standards that make it next to impossible to get at the contents without a pass code.

It is clear “that the government is relying on the All Writs Act as a source of authority that is legislative in every meaningful way,” Orenstein wrote. “It is also clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts” than “taking the chance that open legislative debate might produce a result less to its liking.”

Since Cook published his blog post declaring that Apple would challenge the California magistrate’s order, law enforcement officials across the country have rallied behind the Justice Department. Apple’s stand puts “profit over safety,” said Jonathan Thompson, executive director of the National Sheriffs’ Association. “This has nothing to do with privacy,” Thompson said. “It’s all about money and their brand.”

Big names in the tech sector have come to Apple’s defense. Microsoft Corp. said it would file a legal brief in support of Apple. Google Chief Executive Officer Sundar Pichai said the government’s request could spur “a troubling precedent.” WhatsApp co-founder Jan Koum said on his Facebook page, “Today our freedom and our liberty is at stake.”

The case is Order requiring Apple, Inc. to assist in the execution of a search warrant issued by the court et al, 1:15-mc-1902, U.S. District Court, Eastern District of New York (Brooklyn).



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