As expected, federal prosecutors in an iPhone unlocking case in New York have now asked a more senior judge, known as a district judge, to countermand a magistrate judge who ruled in Apple’s favor last week.
Last week, US Magistrate Judge James Orenstein concluded that what the government was asking for went too far.
In his ruling, he worried about a “virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.”The case involves Jun Feng, a drug dealer who has already pleaded guilty, and his seized iPhone 5S running iOS 7. Prosecutors have said previously that the investigation was not over and that it still needed data from Feng’s phone.
As the government reminded the court, Apple does have the ability to unlock this phone, unlike the seized iPhone 5C in San Bernardino. Moreover, as Department of Justice lawyers note, Apple has complied numerous times previously.
In its 51-page Monday filing, the government largely re-hashed its previous arguments, saying that existing law should force Apple’s assistance.
In this case, the government arrested a criminal.
The government got a warrant to search the criminal’s phone. Law enforcement agents tried to search the phone themselves, but determined they could not do so without risking the destruction of evidence.
The government then applied for a second court order to ask Apple to perform a simple task: something that Apple can easily do, that it has done many times before, and that will have no effect on the security of its products or the safety of its customers.
This is how the system is supposed to work.
In 2014 and 2015, Apple took a two-pronged approach to resisting government pressure: one was to make iOS 8 more resilient than previous versions of the operating system, making it impossible for Apple itself to bypass a passcode lockout.
The other crucial element was to impose firmer legal resistance in court filings.
The New York case is believed to be the first time that Apple openly resisted the government’s attempt to access a seized phone.
Agree to disagree?
This New York case pre-dates Apple’s current battle with the government over a locked iPhone 5C that belonged to one of the shooters in the December 2015 terrorist attack in San Bernardino—that case is due to be heard in court next month in nearby Riverside, California.
In the California case, federal investigators asked for and received an unprecedented court order compelling Apple to create a new firmware to unlock the device.
In February 2016, Apple formally challenged that order, and the outcome is pending.
Both the New York and California cases, however, involve the government’s attempt to use an obscure 18th-Century statute known as the All Writs Act, which enables a court to order a person or a company to perform some action.
“Judge Orenstein ruled the FBI’s request would ‘thoroughly undermine fundamental principles of the Constitution’ and we agree,” an Apple spokesman told Ars in a statement. “We share the judge’s concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone’s safety and privacy.”
The New York case, however, marks the first time that a federal judge has ruled in favor of a more privacy-minded Apple. More recent amicus, or friend of the court briefs, supporting Apple, have cited Judge Orenstein’s ruling.
“The government’s argument is: ‘I would have gotten away with it too, if it weren’t for you pesky magistrate!’” Riana Pfefferkorn, a legal fellow at the Stanford Center for Internet and Society, told Ars.