Compliance Management, Privacy

Justice Dept. asks district judge to overturn Orenstein’s ruling on Apple

A week after U.S. Attorney General Loretta Lynch told an RSA Conference audience that the Justice Department would resubmit a request for Apple to unlock a phone central to a drug case in New York, federal prosecutors have asked that a district judge to overturn what Lynch had called a “disappointing” ruling by U.S. Magistrate Judge James Orenstein.

The magistrate, known as a Fourth Amendment advocate, ruled in February that Apple did not have to comply with a Federal Bureau of Investigation (FBI) request to crack open an iPhone belonging to drug dealer Jun Feng who had entered a guilty plea in the case. 

Troubled by what he thought could be the government exceeding the authority afforded by the All Writs Act of 1789, which it used liberally to justify its data access requests, Orenstein asked Apple to weigh in on the matter. The tech giant, of course, spurned Justice's advances.

And Orenstein ruled in the company's favor.

“Under the circumstances of this case, the government has failed to establish either that the AWA permits the relief it seeks or that, even if such an order is authorized, the discretionary factors I must consider weigh in favor of granting the motion,” Orenstein wrote in his ruling. “More specifically, the established rules for interpreting a statute's text constrain me to reject the government's interpretation that the AWA empowers a court to grant any relief not outright prohibited by law.”

Alex Abdo, staff attorney with the ACLU Speech, Privacy, and Technology Project, said in a statement praised Orenstein's ruling as "a victory for privacy, security, and common sense,” contending that “the government should not be able to run to court to get the surveillance power that Congress has deliberately kept from it.”

In court documents filed Monday federal prosecutors sought to effectively go over Orenstein's head to a district judge, claiming that the government has no other way to access the phone's contents to “effectuate a warrant” and that compelling Apple's assistance does not “unduly” burden the tech company.

The filing implied that the order forcing Apple's hand is a no-brainer since the government already has a warrant to search Feng's phone and simply needs the company's assistance, something that Apple has provided before. If the company provides help, it “will have no effect on the security of its products or the safety of its customers,” the Justice Department said.

Prosecutors also took issue with what it called “the novel interpretive gloss on the All Writs Act Judge Orenstein advocates” contending that “there is no factual basis for the finding that Congress considered and rejected the relief” the Justice Department has requested.

Orenstein's ruling is not binding and does not have legal impact on a case in California where a judge has ordered Apple to help the Federal Bureau of Investigation (FBI) crack an iPhone 5c used by one the shooters in the San Bernardino shootings in December.

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