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 The government sought access to the phone in the Brooklyn case in
October, months before a judge in California ordered Apple to take
special measures to give the government access to the phone used by
one of the shooters in the San Bernardino, California, attacks.
U.S. Magistrate Judge James Orenstein in Brooklyn ruled that he did
not have the legal authority to order Apple to disable the security
of an iPhone that was seized during a drug investigation.
His ruling echoed many of the arguments that Apple has made in the
San Bernardino case, particularly his finding that a 1789 law called
the All Writs Act cannot be used to force Apple to open the phone.
Orenstein also found that Apple was largely exempt from complying
with such requests by a 1994 law that updated wiretapping laws.
A senior Apple executive, who spoke on condition he not be named,
said during a call with reporters that Orenstein's decision would
bode well for the company in the San Bernardino case, which has
touched off a fierce national debate about the balance between
fighting crime and preserving privacy in the digital age.
He said that the government's demands in the San Bernardino case,
which include compelling Apple to alter its operating system, were
even more far-reaching than in the NY case.
 Although U.S. Magistrate Judge Sheri Pym, the judge in the San
Bernardino case, will not be bound by Orenstein's decision, the
senior Apple executive said it will likely be influential. In both
cases, the government relies on the All Writs Act, a broad 1789 law
which enables judges to require actions necessary to enforce their
own orders.
The Justice Department is "disappointed" in Orenstein's ruling and
plans to ask a higher judge within the same federal district to
review the matter in coming days, a department representative said.
Though the defendant in the drug case has already pleaded guilty,
the Justice Department still believes the phone may contain evidence
that "will assist us in an active criminal investigation," the
official said.
When fighting the government's order to help extract data from the
iPhone, Apple had argued that being forced to do so "could threaten
the trust between Apple and its customers and substantially tarnish
the Apple brand," according to court records.
Orenstein said his ruling in Apple’s favor was not a decision on
"whether the government should be able to force Apple to help it
unlock a specific device; it is instead whether the All Writs Act
(AWA) resolves that issue and many others like it yet to come."
Orenstein concluded that "the government posits a reading of the
latter phrase so expansive – and in particular, in such tension with
the doctrine of separation of powers – as to cast doubt on the AWA's
constitutionality if adopted."
He also wrote: "The implications of the government's position are so
far-reaching – both in terms of what it would allow today and what
it implies about Congressional intent in 1789 – as to produce
impermissibly absurd results."
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Orenstein also found that Communications Assistance for Law
Enforcement Act, passed in 1994, exempted Apple from this sort of
request.
Amazon.com Inc <AMZN.O>, Alphabet Inc's <GOOGL.O> Google, Facebook
Inc <FB.O>, Microsoft Corp <MSFT.O> and Twitter Inc <TWTR.N> have
voiced support for Apple.
The iPhone 5s at issue in the case was seized by the U.S. Drug
Enforcement Administration during a 2014 search of the Queens, New
York, residence of Jun Feng, who authorities suspected of being
involved in drug trafficking.
Authorities sought to access the phone in 2015 while the case was
pending. Feng later pleaded guilty in October while Orenstein was
weighing the request, but both Apple and the Justice Department said
they still wanted a ruling.
Prosecutors have said that since 2008, Apple has complied with 70
such court orders based on the All Writs Act without objection. Many
of those cases appear to have involved earlier iPhone models that
did not require customized software to unlock.
The case before Brooklyn was, according to prosecutors, the first
time Apple had objected to law enforcement efforts to utilize search
warrants to get the tech company to provide assistance and unlock
iPhones seized during investigations.
But since October, when Apple first asked Orenstein to deny the
government's request, Apple has objected to helping law enforcement
access at least 12 devices for which the U.S. Justice Department has
sought its help, according to a letter from Apple to Orenstein that
was unsealed earlier this month.
The senior Apple executive said the company has never made a new
piece of software in response to a government request.
(Reporting by Julia Edwards and Julia Harte in Washington, and Julia
Love in San Francisco; Additional reporting by Nate Raymond in New
York City; Editing by Lisa Shumaker and Jonathan Weber)
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