In scathing ruling, judge says Apple can't be forced to unlock iPhones

29.02.2016
Apple continues to fight the FBI over a request to create a bypass mechanism for iOS to let the government access the local contents of a dead terrorist's iPhone. But the  same legal justification -- a 1789 law called the All Writs Act -- has been used by the federal government in more than 70 cases to force Apple to decrypt iPhones used by alleged criminals.

Today, James Orenstein, a federal judge in Brooklyn, N.Y., said the government's position was dead wrong. The very strongly worded ruling said the government's assertions were deeply unconstitutional, their results would be "absurd," and they give the courts the ability to impose anything that Congress did not explicitly prevent.

Orenstein wrote:

The ruling is a significant one because it examines in depth the applicability of the All Writs Act, which gave the courts the ability to require people in some cases to comply with requests for information. The All Writs Act is the law that the FBI, federal prosecutors, and other government agencies use to try to force companies like Apple to actively aid their investigations by unlocking devices protected via passwords and encryption.

After getting more than 80 such requests citing the All Writs Act, Apple asked the judge to "clarify" when and where the All Writs Act could be used to compel it to help. In his ruling, Judge Orenstein goes through all the government arguments and demolishes them one by one -- and explains why they apply far beyond the specific case he has been handling. Orenstein wrote:

The government can compel companies to turn over data they have, Orenstein wrote -- which Apple has done every time it's been given a court order, he noted -- but it can't force private companies to work on behalf of the government or against their self-interests. In Apple's case, that would be destroying Apple's ability to protect customer information held by those customers.

Orenstein noted that Apple declined to help federal agencies bypass its own systems' security, which is perfectly legal. He disagreed with the government's characterization that declining to help equated with "thwarting" the government. 

Orenstein wrote:

Ironically, around the time Orenstein issued his ruling, New York's top prosecutor warned Congress that Apple's refusal to help the government unlock its devices "frustrates the ability of law enforcement to prevent, investigate, and prosecute criminals" -- one of the arguments Orenstein rejected.

Apple is expected to testify before Congress tomorrow about its stand against breaking into users' devices on behalf of government agencies. Apple has the support of Google and Microsoft -- who also offer customers encryption technology  -- as well as many other technology firms. And now it has the support of a federal judge.

(www.infoworld.com)

Galen Gruman

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