encryption

NY Judge: it’s OK to say no to unlocking iPhone

In a New York case involving illicit drugs, U.S. Magistrate Judge James Orenstein ruled that Apple does not have to unlock an iPhone on demand from the U.S. government.

Orenstein is “the first federal judge to rule that the [All Writs] act does not permit a court to order companies to pull encrypted data off a customer’s phone or tablet.”

Orenstein’s ruling makes for great reading if you side with Apple in this privacy battle. The judge was disdainful of the government’s arguments; seven times he used the word absurd or a variant to describe the government’s claims.

One example of the absurdity that Orenstein called out: the government argued that the All Writs act would authorize their request even if Congress had reached a unanimous conclusion not to authorize the request.

Apple v FBI, NY case

Here’s another. The government wanted the phone unlocked even after the suspect pled guilty.

apple - orenstein

But for me, one of the most gut-clenching observations is that the government appears to be arguing that Apple is somehow culpable, in the sense of being obligated to do the government’s work for free, simply because it sold a device capable of being encrypted. Why, you ask? Because Apple “reaps profits” from selling iPhones to consumers and some of those consumers are “inevitably” going to be criminals.

Apple v FBI

I am not a lawyer, but this argument seems overly broad.

Perhaps it was this argument that compelled the judge to ask Apple for a briefing, a supplemental response.

apple v fbi

Indeed, Orenstein believes the government’s request may be unconstitutional.

Apple v FBI unconstitutional

 

And then there is the Internet of Things to consider:

 

All in all, a very good day for Apple. And a reflection of CEO Tim Cook’s decision to take this discussion public. I shall close with Orenstein’s concluding paragraph:

“… the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther … 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. 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.”

 

Judge Orenstein was appointed to the bench by President George W. Bush.

Read the order (pdf)
Image Flickr CC license

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