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02 Mar 2016
The US government is demanding Apple unlock iPhones in about a dozen cases beside the San Bernardino one. In a strikingly similar case, Judge James Orenstein in Brooklyn rejected the government's request for three separate reasons. In the decision the judge refers several times to the San Bernardino case, and it is clear he expects this decision to be an important precedent for that one. In June 2014 the government arrested Jun Feng in Queens NY on drug charges and confiscated his iPhone 5S. Over a year later, in July 2015 got a warrant to search the phone and found that it was locked. In October they filed a proposed order under the 1789 All Writs Act (AWA) to have Apple unlock the phone. It appears that Apple initially cooperated and suggested some of the language in the proposed order, but if so they changed their minds and opposed it. Shortly afterward Feng pled guilty. As in San Bernardino, the phone no longer has any relevance to the original case, but only as a possible source of information about others, and also as in San Bernardino, whatever is on the phone has been there for quite a while. The judge then turns to the application of the AWA and comes to its requirement that writs be "agreeable to the usages and principles of law." The government argues that means they can do anything that Congress hasn't specifically forbidden to "fill gaps" in the law. The judge found no relevant case law, so he has to look at the intent of the law, and found that argument utterly unpersuasive. The AWA was one of the first laws passed by the First Congress, which contained many of the same people who'd written and ratified the Constitution. He found it utterly implausible that a year after hammering out the separation of powers in the Constitution, they'd hand a blank check to the courts to invent stuff. Agreeable means consistent with the laws that exist, and he looked at CALEA debated at great length and passed in 1994 to update the requirements for technology companies to assist law enforcement. CALEA puts a lot of requirements on phone companies, but specifically says that the government cannot "require any specific design" of equipment or services, or "prohibit the adoption" of any equipment or service. It further says that CALEA does not apply to "information services" which everyone agrees covers things like iTunes and other Apple online services. So there's no gap to be filled here, Congress thought about what the government wants in this case and said no. Hence the government cannot require the court to grant the writ under the AWA and Apple wins. A case cited by both sides as precedent is the 1977 United States vs. New York Telephone Co in which a closely divided Supreme Court found that the government could use the AWA to require N.Y. Tel. to install a pen register (a device that records dialed phone numbers) for a gambling investigation where there was no place the government could install its own device, but N.Y. Tel. had spare wires and its own pen registers it routinely used for auditing and similar purposes. The government argued that this case is just like N.Y. Tel, Apple argued that it's completely different, and the court noted that the decision gives it some discretionary factors to decide whether to grant AWA writs, so it looks at those. One factor is how closely related to the crime the subject of the writ is. In the N.Y. Tel. case, the telco was quite close because the crooks were already using phones and wires owned by the telco. In the Feng case, Apple's only connection is that it had earlier sold a phone to Feng, just like it sold phones to millions of other people. The government argues that Apple "thwarts" (a term from N.Y. Tel.) their investigation, which the judge rejects -- Apple is not impeding the government, they're just not helping them, which they have no obligation to do. Another discretionary factor is "burdensomeness." In N.Y. Tel, all parties agree it was not a big deal to send someone out to install a pen register, since it's something the highly regulated telco routinely did for other reasons, and N.Y. Tel had already offered to show the government how to do it. In Feng, Apple is not highly regulated, they would not otherwise build the software the government demands, and that software is now "offensive to it," so there's no way they'll tell the government or anyone else how to do it. The court notes that Apple used to be more cooperative but so what, they're allowed to change their minds. He also observes that there are many similar requests in the pipeline, so if this one is granted the burden of the rest of them will likely follow. In short, Apple is not close to the defendant, the burden is excessive, Apple still wins. The final discretionary factor is necessity, can the government get what they need any other way. The government claims in this case that they can't. But two months earlier in another case, Djibo, the government claimed that they could unlock an iPhone. When the judge asked at a hearing how both could be true, the government claimed it was highly device specific and this one was much riskier, so only Apple could do it. But Djibo had an iPhone 5 with iOS 8.1.2 while Feng had iOS 7, which everyone agrees is easier to crack than iOS 8. The judge found that the government statements were "unreliable", and hence they had not established that they needed Apple's help. So Apple still wins, three for three. In the conclusion he has no opinion whether: the government's legitimate interest in ensuring that no door is too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed against it here. That is a question for the Congress to decide, not judges, and not under the All Writs Act. This is a clear and comprehensive decision with many details that I left out due to its 50 page length. The judge in California will surely be looking at it closely and deciding what in that case might be different and what might not.
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