Judge rules Apple doesn’t have to unlock Brooklyn iPhone

A New York judge ruled on Monday that the U.S. government cannot force Apple to provide it access to a locked iPhone as part of a routine drug case in Brooklyn.  

{mosads}The case has been closely watched as Apple simultaneously seeks to oppose a separate court order demanding that it help the FBI unlock an iPhone used by one of the San Bernardino shooters.

U.S. Magistrate Judge James Orenstein found Monday that none of the factors he considered in the New York case “justifies imposing on Apple the obligation to assist the government’s investigation against its will.”

The Department of Justice has already said it will ask the judge to review the decision.

“This phone may contain evidence that will assist us in an active criminal investigation, and we will continue to use the judicial system in our attempt to obtain it,” the Justice Department said in a statement.

In both cases, the government has attempted to use an 18th-century law known as the All Writs Act to force Apple to write a piece of software that would disable a key security feature on the phone. 

The 1789 law allows federal judges to compel others to help the government perform its duties so long as requests are not “unduly burdensome.”

While the FBI has insisted in the San Bernardino case that its request is limited to only a single phone, the existence of similar cases across the country — such as the New York one — have weakened that argument.

Critics have warned that a decision in favor of the FBI would set a precedent that would allow the FBI to force Apple to unlock any phone it chooses.

“I don’t see a limiting principle — if that argument is accepted by the court in this case, won’t it lead district attorneys and other prosecutors around the country to essentially make the same argument in their cases?” Rep. Adam Schiff (D-Calif.) pressed FBI Director Comey during a House Intelligence Committee hearing last week.

Orenstein addressed those concerns in his denial.

“Nothing in the government’s arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary,” he wrote.

Orenstein also obliquely addressed arguments from some critics that the FBI has tried to use the courts to force a policy on encryption that it has been unable to persuade Congress to adopt.

Last year, FBI Director James Comey made repeated calls for legislation outlawing unbreakable encryption that were ultimately rebuffed by both lawmakers and the White House — and Comey has publicly admitted it wasn’t a feasible stance.

But now some onlookers, including lawmakers, cite that history as evidence the FBI is using court orders to try to force de facto policy changes that it was unable to persuade Congress to legislate.

Under the All Writs Act, Orenstein writes, the government has the authority to issue orders that are “agreeable to the usages and principles of law.”

But, he writes, “the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it.”

–This post was updated on Tuesday at 11.32 a.m.