Apple's Showdown with the Feds Gains Steam with Brooklyn Decision

By Tara Seals March 02, 2016

Apple may have been handed a boost this week in its ongoing tete a tete with the Feds over user privacy, but the precedent is far from settled.

U.S. magistrate judge James Orenstein in Brooklyn ruled this week that the tech giant is under no compulsion to hand the Justice Department access to the contents of an iPhone belonging to a drug dealer.

Although the owner has already pleaded guilty, the FBI has argued that evidence on the device “will assist us in an active criminal investigation.” Apple has counter-argued that complying with the request “could threaten the trust between Apple and its customers and substantially tarnish the Apple brand,” according to court records, especially now that the FBI has their man.

The judge ruled that the All Writs Act of 1789 couldn’t be used to demand circumvention of the security of the device, which was recovered during a drug raid.

"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,” said judge Orenstein.

The broader implications of the case are noteworthy, as the FBI continues to seek access to the iPhone of San Bernardino gunman Syed Farook, who attacked a California center for the disabled in December, killing 14 and injuring more in a terror-motivated attack.

In that case, a court order issued by a California magistrate has asked Apple to create a new custom iOS version to install on the device – an iPhone 5C running iOS9 – which will allow the FBI to brute force the passcode of the gunman’s phone. Apple has bluntly refused, saying that it would not sanction the creation of software with the potential to unlock anyone’s iPhone. In turn, this is leading up to a courtroom showdown.

“The FBI may use different words to describe this tool, but make no mistake: Building a version of iOS that bypasses security in this way would undeniably create a backdoor,” explained Apple CEO Tim Cook. “And while the government may argue that its use would be limited to this case, there is no way to guarantee such control.”

In this case, too, the Justice Department is trying to use the All Writs Act, and while the California judge will not be bound by the Brooklyn decision, it could be offered as precedent.

Although Apple has complied in the past with scores of court orders based on the All Writs Act, since October, it has either rejected or is seeking additional information in 12 separate cases in which the FBI is trying to use the 1789 law to get around iOS security.

Apple CEO Tim Cook has noted: “The implications of the government’s demands are chilling. If the government can use the All Writs Act to make it easier to unlock your iPhone, it would have the power to reach into anyone’s device to capture their data. The government could extend this breach of privacy and demand that Apple build surveillance software to intercept your messages, access your health records or financial data, track your location, or even access your phone’s microphone or camera without your knowledge.”

In the Brooklyn case, the DoJ said that it was “disappointed” by the ruling and will look to appeal to a higher court.

Edited by Stefania Viscusi

Contributing Writer

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