Reuters reporter Juleit Edwards reports that in a separate case to the San Bernardino FBiOS case, Brooklyn based magistrate judge James Orenstein has denied a government order to bypass the security code on an Apple device using the All Writs Act. The device in question belonged to Jun Feng, whose search of his apartment of the Drug Enforcement Agency (DEA) included several iPhones, one of which belonged to Feng.
The government, unable to break the passcode based lock of the phone, had filed a request in October 2015 to force Apple to comply with the unlocking, solely using the All Writs Act as their compelling device, suggesting that it would not cause unreasonable burden on Apple to break the device's passcode. The Judge disagreed, saying that the All Writs Act cannot be used to compel companies to do things that congress has rejected:
In short, whatever else the AWA's "usages and principles" clause may be intended to accomplish, it cannot be a means for the executive branch to achieve a legislative goal that Congress has considered and rejected.
The government's position also produces a wholly different kind of absurdity: the idea that the First Congress might so thoroughly undermine fundamental principles of the Constitution that many of its members had personally just helped to write or to ratify. Its preferred reading of the law – which allows a court to confer on the executive branch any investigative authority Congress has decided to withhold, so long as it has not affirmatively outlawed it – would transform the AWA from a limited gap-filing statute that ensures the smooth functioning of the judiciary itself into a mechanism for upending the separation of powers by delegating to the judiciary a legislative power bounded only by Congress's superior ability to prohibit or preempt. I conclude that the constitutionality of such an interpretation is so doubtful as to render it impermissible as a matter of statutory construction.
In a stunning display of common sense, the Judge notes that the timing and force of the AWA is to try and achieve backdoors through the use of covert force instead of in a public debate of law:
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 (in proceedings that had always been, at the time it filed the instant Application, shielded from public scrutiny) rather than taking the chance that open legislative debate might produce a result less to its liking. Indeed, on the very same day that the government filed the ex parte Application in this case (as well as a similar application in the Southern District of New York, see DE 27 at 2), it made a public announcement that after months of discussion about the need to update CALEA to provide the kind of authority it seeks here, it would not seek such legislation.
Furthermore, unlike the last time the All Writs Act was successfully used against a telephone company – where the company's own premises were being used to conduct crimes – Apple is not responsible for the uses to which their iPhone products are put, in the same way that automobile manufacturers cannot be held liable for crimes committed therein:
In N.Y. Tel. Co., the Supreme Court held that where there was probable cause to believe that a
telephone company's own property was "being employed to facilitate a criminal enterprise on a continuing basis[,]" and where the company was " a highly regulated public utility with a duty to serve the public," the company was not "so far removed from the underlying controversy that its assistance could not be permissibly compelled." ...After considering the later-submitted arguments from the government and Apple, I adhere to that view, and conclude that unlike the public utility in N.Y. Tel. Co., Apple is too far removed from Feng's criminal conduct to have any obligation to assist the DEA's investigation.
To the extent that Feng used his iPhone in committing crimes, he used his own property, not Apple's. Unlike the telephone company in N.Y. Tel. Co., which owned the facility used for criminal communications, Apple has no ownership interest in anything that the record reveals Feng used to commit a crime.
Furthermore, even in this case (where Apple is not being compelled to create FBiOS, but rather to unlock the phone on demand) the Judge does not believe that it is something Apple can do trivially:
Thus, the government's argument that the burdens an AWA order here would impose on Apple are as negligible as those imposed on the telephone company in N.Y. Tel. Co. cannot withstand scrutiny. The government's remaining arguments against a finding of burden are similarly unpersuasive. The government essentially argues that having reaped the benefits of being an American company, it cannot claim to be burdened by being seen to assist the government.
Such argument reflects poorly on a government that exists in part to safeguard the freedom of its citizens – acting as individuals or through the organizations they create – to make autonomous choices about how best to balance societal and private interests in going about their lives and their businesses. The same argument could be used to condemn with equal force any citizen's chosen form of dissent.
The order concludes that the use of the All Writs Act to compel Apple to provide phone unlocking services for this or newer iPhones is both burdensome and effectively allows the government to compel anyone to do anything unless it is explicitly prohibited by law. It concludes:
In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or others, the government's legitimate interest in ensuring that no door is too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed against it here. Those competing values extend beyond the individual's interest in vindicating reasonable expectations of privacy – which is not directly implicated where, as here, it must give way to the mandate of a lawful warrant. They include the commercial interest in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion; and the far more fundamental and universal interest – important to individuals as a matter of safety, to businesses as a matter of competitive fairness, and to society as a whole as a matter of national security – in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can cause.
How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago. But that debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive. It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.
Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government's motion is denied.
Although unrelated to the San Bernadino case, the Judge explicitly mentions "and others like it in the county" which could implicitly be read to include it. It also highlights the fact that the unlocking capabilities requested by the FBiOS is not explicitly associated with one iPhone, but desired across more than one. The Judge explicitly asked Apple how many times it had been compelled to provide assistance:
I therefore directed Apple to provide, among other things, specific details of the requests it had received from the government during the pendency of this action, the position Apple had taken in response, and the results of those requests. See Order dated Feb. 16, 2016. Although I did not require a response until March 1, 2016, Apple supplied the requested information the next day. DE 27 (letter dated Feb. 17, 2016). In that response, Apple identified nine requests filed in federal courts across the country from October 8, 2015 (the date of the instant Application) through February 9, 2016. Id. at 2. In each, Apple has been ordered under the authority of the AWA (or has been told that an order has been requested or entered) to help the government bypass the passcode security of a total of twelve devices; in each such case in which Apple has actually received a court order, Apple has objected. Id. None of those cases has yet been finally resolved, and Apple reports that it has not to date provided the requested assistance in any of them.
The order contains information about the requested FBiOS as well:
In addition to the nine new cases described above, Apple also reported that as recently as February 16, 2016, shortly after my own order of the same date, the United States District Court for the Central District of California had entered an ex parte order under the AWA directing Apple
"to perform even more burdensome and involved engineering than that sought in the case currently before this Court – i.e., to create and load Apple-signed software onto the subject iPhone device to circumvent the security and anti-tampering features of the device in order to enable the government to hack the passcode to obtain access to the protected data contained therein"...
This matter is therefore one of a dozen pending cases in which the government and Apple disagree as to the court's authority to command Apple to assist the government in defeating the passcode security of devices Apple has manufactured.
On Tuesday, Apple's legal counsel Bruce Sewell will testify before the House Judiciary Committee. Tech Crunch reports this case is being referred to as the "The Encryption Tightrope – Balancing American's Security and Privacy". FBI director James Comey will also be testifying. InfoQ will closely monitor the case and report on developments.