Judge: U.S. can't force Apple to hack iPhone

While Apple (AAPL) and the FBI have been busy battling over a dead terrorist's passcode-locked iPhone in a case in California, a federal judge in New York on Monday ruled for Apple in a similar case over a locked iPhone belonging to an admitted drug dealer.

In a 50-page ruling rejecting almost everything federal prosecutors had argued, Judge James Orenstein ruled that Apple could not be compelled to help get information off a locked iPhone used by methamphetamine dealer Jun Feng under the 1789 All Writs Act, the same law at issue in the California terrorism case.

 

Orenstein acknowledged that the debate over encryption and the needs of law enforcement required balancing competing interests. But Congress, not the courts, should make that decision, he said.

"That debate must happen today, and it must take place among legislators who are equipped to consider the technological and cultural realities of a world their predecessors could not begin to conceive," the judge wrote.

 "It would betray our constitutional heritage and our people's claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789."

Prosecutors had argued that Apple was connected closely enough to Feng's iPhone to be compelled to help, citing a 1977 Supreme Court ruling that the All Writs Act forced New York Telephone to assist in recording numbers dialed from a suspect's phone. They sought to have Apple bypass the phone's passcode security and extract Feng's personal data from the phone.

But Orenstein rejected that logic. "To the extent that Feng used his iPhone in committing crimes, he used his own property, not Apple's," the judge wrote. "Unlike the telephone company in N.Y. Tel. Co., which owned the facility used for criminal communications, Apple has no ownership interest in anything that the record reveals Feng used to commit a crime."

The ruling comes a day before FBI director James Comey and Apple general counsel Bruce Sewell are to face off at a Congressional hearing over the encryption issue. Comey and other law enforcers say Apple's increasingly strong security features are thwarting their ability to catch crooks and terrorists. 

Apple and other technology companies say that strong security is needed to protect the exploding amount of sensitive and personal information stored on phones by billions of users around the world.

"This case is not specifically about encryption, not even about computers," says Lance Hoffman, a computer science professor at George Washington and founder of the Cyberspace Security Policy and Research Institute. "It's about how can any tool be used, about how the whole digital world should evolve."

Exempted from helping

In Monday's ruling, Judge Orenstein also concluded that lawmakers had rejected requiring companies like Apple to help with decrypting encoded information when Congress adopted the 1994 Communications Assistance for Law Enforcement Act. 

The law requires telephone companies to assist in carrying out wiretap orders even if the companies had encrypted the communications. But the law also exempted other kinds of companies from having to assist in decryption.

Apple's lawyer, Marc Zwillinger, pointed to the CALEA portion of the ruling as crucial. "Judge Orenstein’s ruling makes clear that the government was seeking legislative authority from the courts that Congress had chosen not to provide in CALEA," Zwillinger said. "Also, the ruling makes clear that the legal issues do not necessarily turn only on the burden that the order places on Apple. 

Instead, the found that the authority that the government seeks violates the constitution because it “undermines ‘the general protection against tyranny that the Founders believed required the careful separation of powers.’”

Apple has made similar arguments in the higher-profile California case, where the FBI wants even more help from Apple to get information off an iPhone used by deceased San Bernardino shooter Syed Rizwan Farook. 

 Farook's phone, running more recent Apple software, has even more of its data encrypted. In that case, the FBI wants Apple to write a special, new version of its iPhone software that weakens the phone's security so the agency can attempt to crack Farook's passcode.

Orenstein's ruling in the New York case isn't binding over the Californai case, although Apple will likely cite his conclusions to bolster its arguments. Apple and government attorneys have disclosed a total of a dozen ongoing cases over encrypted iPhone data. Ultimately, the matter will probably end up before the Supreme Court if Congress doesn't clarify the situation with new legislation.

Since the iPhone hit the market in 2007, Apple has agreed to help get information off the devices for law enforcement agencies in at least 70 prior cases. But Judge Orenstein stopped the run of cooperation last October when, of his own accord, he questioned whether the All Writs Act was sufficient justification to compel Apple's assistance.

The case didn't get much attention until recently, when Apple resisted helping unlock the phone in the San Bernardino case. In a December 2 attack, Farook and his wife, Tashfeen Malik, killed 14 people at a holiday party at the Inland Regional Center in San Bernardino. 

The couple destroyed two phones they had carried during the attacks, but authorities found Farook's work iPhone in the back of a car driven by his mother.

Apple turned over to the FBI data from Farook's phone backed up on its iCloud servers, but has so far resisted writing the new software that the agency says it needs to crack Farook's passcode and see what additional information may reside only on the phone.