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FBI says NY judge went too far in ruling the FBI went too far in forcing Apple to unlock iPhone

More Inception than legal argument at this point

By Kieren McCarthy, 8 Mar 2016

The US Department of Justice has appealed a decision by a New York judge to refuse the FBI access to an iPhone: one part in a wider legal battle between law enforcement and Apple.

The New York case is separate from the San Bernardino case in California, over which Apple and the FBI have been very publicly fighting. However the decision by a New York magistrate last month to shoot down the FBI's demand that Apple help agents access a locked iPhone, and his rationale for doing so, have been widely cited and referenced, not least by Apple.

In New York, the iPhone belongs to alleged drug dealer Jun Feng, whereas the San Bernardino phone belonged to mass killer Syed Farook.

In particular, magistrate judge James Orenstein concluded that the FBI did not have the legal authority to compel Apple to help them bypass the phone's passcode and, critically, said the powerful All Writs Act was the wrong legal instrument to use. The FBI is using that same act to argue for access in the San Bernardino case.

Judge Orenstein 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.

He added that to give the FBI and DEA the powers they requested would greatly expand governmental powers and put the All Writs Act's constitutionality in doubt. He also declared that since Apple has no responsibility for Feng's wrongdoing, he could not justify "imposing on Apple the obligation to assist the government's investigation against its will."

The New York case was addressed by FBI director James Comey at a Congressional hearing on the Apple case last week, where he acknowledged that the FBI had lost. He tried to play down its importance by suggesting it was just one fight in a much larger battle.

Regardless, the decision is important, so prosecutors have asked [PDF] district judge Margo Brodie to look at it and grant them the court order that Orenstein denied.

The FBI argues that Orenstein looked at the question too broadly and focused on possible future abuse rather than the actual case he was considering. And then effectively accuses him of overreach by saying his ruling "goes far afield of the circumstances of this case and sets forth an unprecedented limitation on federal courts' authority."

It also argues – as it has done in the San Bernardino case – that the request is device-specific and so does not constitute blanket approval for the FBI to break into any iPhone.

As for Apple, unsurprisingly it is in favor of Orenstein's judgment, with a spokesman saying that the company "shares the judge's concern" that use of the All Writs Act in these case is a dangerous path and a "slippery slope". ®

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