Well, well, well…a federal magistrate of the U.S. District Court for the Eastern District of New York has so far refused to order Apple to disable security on a customer’s encrypted mobile device even though the government assured the judge that doing so “is not likely to place any unreasonable burden on Apple.”
According to the court document (pdf), available on Cryptome which recently admitted to a leaking users’ IP addresses in a separate tech drama, the government filed a sealed application on Oct. 8; it asked the court “to issue an order pursuant to the All Writs Act,” and thereby force Apple “to assist in the execution of a federal search warrant by disabling the security of an Apple device that the government has lawfully seized pursuant to a warrant issued by this court. Law enforcement agents have discovered the device to be locked, and have tried and failed to bypass the lock.”
But Magistrate Judge James Orenstein pushed back:
“I defer ruling on the application and respectfully direct Apple to submit its views in writing, no later than October 15, 2015, as to whether the assistance the government seeks is technically feasible and, if so, whether compliance with the proposed order would be unduly burdensome.”
The EFF explained:
The All Writs Act is not a backdoor to bypass other laws. The government cannot impose an unreasonable burden on Apple, and it cannot violate the Constitution. If the government truly wanted Apple to decrypt a phone running iOS 8 or later, it would blow past these boundaries. First, unless Apple is lying about how its system is engineered, it simply can’t grant access to the data on a locked phone—not by reflashing the operating system, and not by pushing a backdoored software update—because it’s locked. That should be the end of it. But if Apple in fact has this capacity, or if the government instead tried to require it to prospectively reengineer the operating system on an unlocked device, All Writs is not the means to do so.
Newsday reported, “Orenstein said the government claimed that in ‘other cases’ Apple was ordered to assist law enforcement and had complied, but he said he found only one published court opinion on the issue, in which an unnamed manufacturer was ordered last year to assist the government.” Apple had no comment about that case.
“Congress has done nothing that would remotely suggest an intent to force Apple, in the circumstances of this case, to provide the assistance the government now requests. To the contrary, Congress has failed to act on concerns expressed by the Justice Department and the FBI about the lack of such legislation, and several of its members have introduced legislation to prohibit exactly what the government now asks to the court to compel.”
After more than year of study and debate, according to The New York Times, President Obama and his advisors “reached a broad conclusion that an effort to compel the companies to give the government access would fail, both politically and technologically.” That wasn’t enough for Apple CEO Tim Cook who reportedly “has pressed the White House for a clear statement that it will never seek a back door in any form, legislative or technical;” Cook wants to wave the statement in the faces of officials in Beijing, Moscow and London.
While it’s not the end of the story, it’s definitely a good sign to see a judge stand on the side of encryption. Sadly however, the device in question may be running a pre-iOS 8 version. If not, then Apple said it “can’t unlock your device for anyone because you hold the key—your unique password” if the device is running iOS 8 and later.
Both the government and Apple can present oral arguments on Oct. 22.