March 3, 2016
On Monday, U.S. Magistrate Judge James Orenstein found the government lacked authority, under the All Writs Act, to force Apple to break its own digital security protocols. This opinion issued mere days after Apple filed a Motion to Vacate a similar order in a case involving the iPhone used by San Bernardino shooter Syed Farook.
The New York Case
In June 2014, the United States Drug Enforcement Agency (DEA) executed a warrant to search Jun Feng’s residence; Feng was suspected of drug trafficking. Among the items seized were a number of mobile devices, including Feng’s cell phone. One year later, the government obtained a warrant to search the mobile device itself, but agents were unable to access any information due to the device’s password protection. These technical issues brought Apple into the case, with the government citing the All Writs Act as its source of authority in requesting Apple’s assistance to break into the device. Judge Orenstein ultimately found the extraordinary relief sought by the government could not be considered “agreeable to the usages and principles of law” as required by the statute.
The San Bernardino Case
Similar arguments have been raised in California. The government, again citing the All Writs Act as its basis for authority, sought and obtained an order that would require Apple to assist the F.B.I. in hacking into the iPhone, and Apple publicly refused; outlining its position in a Customer Letter. On February 26th, Apple brought those arguments to court in a Motion to Vacate the order. The motion highlights Tim Cook’s concerns that this case is not about one isolated iPhone; rather “this case is about the Department of Justice and the F.B.I. seeking through the courts a dangerous power . . . the ability to force companies like Apple to undermine the basic security and privacy interests of hundreds of millions of individuals around the globe.” It further calls out the government’s promise of “just this phone” as patently false, and points to other applications by the government seeking similar orders in a number of courts across the country. Finally, the slippery slope argument is made; if the government can force Apple to write code in this case, what would stop it from forcing Apple to write code to activate video cameras, record conversations for surveillance, or use location services to track an individual? Nothing would.
It’s important that a judge recognizes the All Writs Act doesn’t provide the authority the government claims. Judge Orenstein’s order concludes, “Ultimately, the question . . . is not whether the government should be able to force Apple to help it unlock a specific device . . . [but] whether the All Writs Act resolves that issue” which certainly gives a boost to Apple’s arguments in other cases. Unfortunately, as the decision is not binding for the San Bernardino case, we could still see a ruling in favor of the government.