NY judge: US cannot make Apple provide iPhone data in Brooklyn drug case

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NEW YORK — A New York judge says the U.S. Justice Department cannot force Apple to provide the FBI with access to locked iPhone data in a routine Brooklyn drug case.

U.S. Magistrate Judge James Orenstein ruled Monday. The decision follows a California magistrate judge’s order requiring Apple to create software to help the U.S. hack the iPhone of a shooter in the Dec. 2 killing of 14 people in San Bernardino, California.

In October, Orenstein invited Apple to challenge the government’s use of a 1789 law to compel Apple to help it recover iPhone data in criminal cases. Since then, lawyers say Apple has opposed the requests to help extract information from over a dozen iPhones in California, Illinois, Massachusetts and New York.

A senior Apple executive said that the company policy has been to give the government information when there’s a lawful order to do so, but that in New York the judge never issued an order and instead asked attorneys about the constitutionality of the government’s use of the All Writs Act to compel it to help law enforcement recover iPhone data in criminal cases. The executive spoke on condition of anonymity to discuss a pending legal matter.

The ruling, applies narrowly to the one Brooklyn drug case, but it gives support to the company’s position in its fight against the California judge’s order. In fact, Orenstein, ruling with an eye to the California case, cites it specifically multiple times in his ruling and notes that the government request there is far more “intrusive.”

Both cases hinge partly on whether a law written long before the computer age, the 1789 All Writs Act, could be used to compel Apple to cooperate with efforts to retrieve data from encrypted phones.

“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. “I conclude that it does not.”

The New York case features a government request that is far less onerous for Apple and its cellphone technology; the extraction technique exists for that older operating system and it’s been used before some 70 times before to assist investigators.

Since late 2014, that physical extraction technique hasn’t existed on newer iPhones. In California, U.S. Magistrate Judge Sheri Pym ordered investigators to create specialized software to help the FBI bypass security protocols on the encrypted phone so investigators can test random passcode combinations in rapid sequence to access its data.

Apple has since declined to cooperate in a dozen more instances in four states involving government requests to aid criminal probes by retrieving data from individual iPhones.