NY judge: US cannot make Apple provide iPhone data

In this Feb. 17, 2016 file photo shows an iPhone in Washington. A schism has emerged among family members of victims and survivors of the San Bernardino, California terrorist attack, with at least a couple supporting Apple Inc. in its battle against a federal court order to help the FBI hack into a shooter’s locked iPhone. AP

NEW YORK — The US Justice Department cannot force Apple to provide the FBI with access to locked iPhone data in a routine Brooklyn drug case, a federal judge ruled Monday.

US Magistrate Judge James Orenstein’s written decision gives support to the company’s position in its fight against a California judge’s order that it create specialized software to help the FBI hack into an iPhone linked to the San Bernardino terrorism investigation.

Apple on Thursday formally objected to the order in a brief filed with the court, accusing the federal government of seeking “dangerous power” through the courts and of trampling on the company’s constitutional rights.

The San Bernardino County-owned iPhone 5C was used by Syed Farook, who was a health inspector. He and his wife Tashfeen Malik killed 14 people during a Dec. 2 attack at a county holiday party that was at least partly inspired by the Islamic State group. The couple died later in a gun battle with police.

Apple’s opposition to the government’s tactics has evoked a national debate over digital privacy rights and national security.

READ: Majority of Americans back FBI in battle with Apple

Orenstein concluded that Apple is not obligated to assist government investigators against its will and noted that Congress has not adopted legislation that would achieve the result sought by the government. Orenstein’s ruling — while not considered binding or precedent setting for the California case — will likely still have influence on the arguments put forth before Judge Sheri Pym at a hearing next month. The New York case is far less onerous or invasive for Apple and its technology; the extraction technique exists for that older operating system, and it’s been used before to assist investigators.

In California, Pym ordered investigators to create specialized software — which since late 2014 doesn’t exist for newer phones — to help the FBI bypass security protocols to test random passcode combinations in rapid sequence.

Orenstein said he was offering no opinion on whether in the instance of this case or others, “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.”

He said the interests at stake go beyond expectations of privacy and include the commercial interest in conducting business free of potentially harmful government intrusion and the “far more fundamental and universal interest … in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can cause.”

“How best to balance those interests is a matter of critical importance to our society, and the need for an answer becomes more pressing daily, as the tide of technological advance flows ever farther past the boundaries of what seemed possible even a few decades ago,” Orenstein wrote. “But 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 Justice Department said in a statement that it’s disappointed in the ruling and plans to appeal in coming days. It said Apple had previously agreed many times prior to assist the government and “only changed course when the government’s application for assistance was made public by the court.”

A senior Apple executive said the company policy has been to produce information to the government when there is a lawful order to do so, but that in New York the judge never issued the order, and instead asked attorneys to file briefs addressing the constitutionality of the request for Apple to bypass its security protocols under the 1789 All Writs Act. The executive spoke on condition of anonymity to discuss a pending legal matter.

Orenstein invited Apple in October to challenge the government’s use of the catchall law to compel it to help law enforcement recover iPhone data in criminal cases, noting that another law on the books already covered the issue.

The Cupertino, California-based computer maker did, saying in court papers that extracting information from an iPhone “could threaten the trust between Apple and its customers and substantially tarnish the Apple brand.”

READ: CEO Tim Cook defends Apple’s resistance in FBI iPhone case

It followed up by declining to cooperate in a dozen more instances in four states involving government requests to aid criminal probes by retrieving data from individual iPhones.

In ruling, Orenstein wrote: “I believe Apple has the better argument” because the other law covering wiretaps for telecom companies “explicitly absolves a company like Apple of any responsibility to provide the assistance the government seeks here.”

Federal prosecutors say Apple has stopped short of challenging court orders judicially, except in the cases before Orenstein and the California jurist who ruled about the San Bernardino shooter’s phone.

“Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come,” Orenstein wrote. “For the reasons set forth above, I conclude that it does not.”