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Apple Can Protest Feds’ Phone Break Demand

BROOKLYN, N.Y. (CN) - Apple must be allowed to write to the court before it is ordered to crack the security of a government suspect's seized phone, a magistrate judge ruled on Friday.

Federal prosecutors filed an application under seal on Thursday asking for such an order under the All Writs Act.

The next day, U.S. Magistrate Judge James Orenstein released a public ruling masking the details of the case being considered and delaying decision on the matter until Apple explains to the court whether the order would be either legal or feasible.

"It may reflect an analysis of Apple's business prospects that persuaded the company that failing to provide its customers with the kind of privacy protection the government now seeks to overcome would have longterm costs that outweighed the benefits of a technological approach more to the government's liking," he wrote in an 11-page opinion. "Thus, without hearing from Apple, I cannot assume that forcing it to modify that decision would not impose an unreasonable burden."

Orenstein explained that the statutes governing such an order date back well before the advent of smartphones: the Communications Assistance for Law Enforcement in 1994.

The FBI started briefing Congress about what it described as its "Going Dark" problem more than a decade later in 2009.

Its proposed solutions raised alarms with digital privacy advocates at the Electronic Frontier Foundation, who filed a Freedom of Information Act request shortly after learning about the program.

The organization's staff attorney Andrew Crocker said in a phone interview this is the first public ruling he is aware of where a court has questioned the government's authority to ask for security break order. Two other courts ordered Apple to crack phones, in Manhattan and Oakland, but it is unclear whether the security breaks were successful.

Crocker said it appeared the government was doing an "end run" around a Congressional debate on "backdoor" access to smartphones.

According to the ruling, prosecutors cited a decades-old Supreme Court precedent as an authority for their application: U.S. v. New York Tel. Co., allowing the FBI to install pen registers on two phones. But Orenstein wrote that there were "several ways in which the circumstance of this case differ in material respects" from that 1977 case.

Unlike New York Telephone Company, Apple "manufactured the device at issue, but apparently does not own it," and is a private-sector company rather than a "highly regulated public utility with a duty to serve the public," he wrote.

The ruling adds in a footnote that it is "not clear that Apple can now unlock the device at issue."

Apple has long maintained that it has never worked with any government agencies on creating a "backdoor" to its devices, and its CEO Tim Cook called privacy a "fundamental human right" an Oct. 1 broadcast of NPR's "All Tech Considered."

Orenstein added that the government could threaten the suspect with sanctions for not unlocking the phone.

The magistrate added that his decision to seek Apple's insight breaks from the ruling of a sealed case in Manhattan.

Ironically, the decision came the same day the White House told the Washington Post that President Barack Obama would not call for legislation requiring companies to decode messages for law enforcement.

Apple has until Oct. 15 to respond to the government's application in writing.

Either of the parties can seek an oral argument on Oct. 22.

The U.S. Attorney's Office for the Eastern District of New York and Apple both declined to comment.

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