Apple has scored a point in one of its legal battles over iPhone security. It isn't in the San Bernardino case that has caught national attention in recent weeks, though. Rather, the company has been assisting the government in an investigation of the iPhone of Jun Feng, a man who has plead guilty to drug dealing. The investigators in Feng's case had argued that the All Writs Act (AWA) of 1789 allows them to compel Apple to bypass the passcode security on the defendant's iPhone. On Monday, magistrate judge James Orenstein ruled on Monday in the US District Court of the Eastern District of New York that the AWA does not give the government the power that it seeks.
Orenstein looks to a federal law called the Communications Assistance for Law Enforcement Act, or CALEA, for guidance in this case. The judge notes the All Writs Act is understood to have a "gap-filling" function, and Apple argued that CALEA left no gap to fill in the Feng case. Specifically, CALEA exempts some kinds of businesses from the obligations it creates for telecommunications companies to help law enforcement, including "information services" providers.
Orenstein says Apple is clearly an information services company, and he argues that because neither CALEA nor other statues require Apple to provide the government with the assistance it seeks, the omission of that legal requirement implies that Congress has forbidden the government to compel such assistance under the law. Therefore, Orenstein says invoking the All Writs Act is not "agreeable to the usages and principles of law" as the AWA requires.
While Orenstein's ruling has no direct bearing on the San Bernardino case, the judge does note that the Feng case is just one of 12 such cases where the government has invoked the AWA to enlist Apple's help, and the San Bernardino case is among those 12. Orenstein writes that the in the government's most recent use of the AWA, "it goes so far as to contend that a court - without any legislative authority other than the AWA - can require Apple to create a brand new product that impairs the utility of the products it is in the business of selling."
Since Feng's phone, in contrast to the San Bernardino shooter's, is still running iOS 7, Apple can easily bypass its security already. If, as Orenstein argues, the AWA doesn't allow the government to compel Apple to use technology it already has, then how can law enforcement justify compelling Apple to write new software to unlock the San Bernardino shooter's device using the same law?
Orenstein makes very clear that he'd prefer the issue to be decided in the legislature, not the courts. In a passage that's rather critical of the United States' security agencies he writes, "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."
If both sides commit to a legal battle, the debate could continue for some time, and it may need to be decided in a higher court. This judge's ruling very well may change the way that the government justifies its requests, however. If the All Writs Act doesn't provide the authority the federal government is asking for, it may have to start looking elsewhere for a rationale.
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