When Apple and the DOJ were back in court Monday, arguing over Apple’s refusal to unlock an iPhone seized by law enforcement during an investigation, Magistrate Judge James Orenstein told government attorneys, “What you're asking them [Apple] to do is do work for you.”
But Justice Department attorney Saritha Komatireddy argued that it has compelled Apple to unlock at least 70 devices since 2008. The government believes it has the power to force Apple to comply under the All Writs Act. Just Security explained, “Under the government’s interpretation of the All Writs Act, anyone who makes software could be dragooned into assisting the government in investigating users of the software. If the court adopts this view, it would give investigators immense power.”
On Just Security, Jennifer Granick and Riana Pfefferkorn further explained:
The government’s brief does not acknowledge the sweeping implications of its arguments. It tries to portray its requested unlocking order as narrow and modest, because it “would not require Apple to make any changes to its software or hardware, … [or] to introduce any new ability to access data on its phones. It would simply require Apple to use its existing capability to bypass the passcode on a passcode-locked iOS 7 phone[.]” But that undersells the implications of the legal argument the government is making: that anything a company already can do, it could be compelled to do under the All Writs Act in order to assist law enforcement.
Apple’s point of view is that “The situation would be no different than if the government sought to use the All Writs Act to force a safe manufacturer to travel around the country unlocking safes that the government wants to access, or to make a lock manufacturer pick locks for the government.”
Judge Orenstein told the DOJ that its proposed use of the All Writs Act “puts legislative authority away from Congress and puts it with the courts.” After the judge said, “What you're asking them to do is do work for you,” he compared the government’s request a hypothetical situation in which the DOJ asked him “to order a drug company to take part in an execution against its conscientious objection.” He added, “At some point, a private actor can say [they] don’t want to do this as a matter of conscience. How far does the All Writs Act go?”
Komatireddy asked to reply in writing as she considered the judge’s hypothetical execution remark to be “somewhat inflammatory.”
“Purposefully so,” replied Judge Orenstein.
The government argued that Apple’s decision to fight the search warrant and its refusal to unlock the iPhone after it has done so in the past marked a “stunning reversal.”
The judge asked Apple why it didn’t challenge search warrants in the past if the company believes handing over customer data to the government is so damaging to Apple’s reputation. Apple’s attorney Marc Zwillinger mentioned the ongoing high-profile data breaches that put customer data at risk, before explaining the company’s change of heart is because, “Right now Apple is aware that customer data is under siege from a variety of different directions.”
Judge Orenstein replied, “It just seems to me there’s a dog that didn’t bark here.”
Yet Apple must have had a change of heart as it has been fighting for encryption and against backdoors for some time now. Last week at a tech conference, after NSA Director Admiral Michael Rogers claimed “a balance needed to be struck between safeguarding user privacy and an ability to identify security threats,” Apple CEO Tim Cook replied, “Nobody should have to decide [between] privacy and security. We should be smart enough to do both.” Any compromise would be a “cop-out.”
Both sides are to submit additional letters to Judge Orenstein by tomorrow; he will then rule as soon as possible; the government’s attorney noted that the DEA and FBI are involved in the underlying investigation which is not public.
Just Security suggested that if the government has its way about the All Writs Act, interpreting it to mean that if a company has the capabilities to unlock an encrypted device then it must do it, if that were the law, then “the blow to users’ trust in their encrypted devices, services, and products would be little different than if Apple and other companies were legally required to design backdoors into their encryption mechanisms (an idea the government just can’t seem to drop, its assurances in this brief notwithstanding).”
This is the first time a judge “has refused to enter an iPhone unlocking order under the All Writs Act.” Instead of rubber-stamping the government’s order, the judge is considering the constitutionality of it. “Judge Orenstein’s challenge to the government’s unlocking request in this case marks the first time a judge has undertaken that inquiry and openly declared himself unsatisfied.”
If he “rejects the government’s latest argument for broad authority to access electronic evidence, it will prove influential as the current public debate about encryption policy continues.”