Apple Win Spells Trouble for Push to Unlock Killer’s IPhone

     BROOKLYN, N.Y. (CN) – Far away from a similar fight over the San Bernardino shooter’s iPhone, a federal magistrate refused Monday to make Apple unlock a suspected drug trafficker’s phone in an unrelated narcotics case.
     The American Civil Liberties Union’s attorney Alex Abdo celebrated the decision as a “victory for privacy, security, and common sense.”
     “The government should not be able to run to court to get the surveillance power that Congress has deliberately kept from it,” he wrote in an email. “The future of digital privacy also hangs in the balance. If the government can force companies to weaken the security of their products, then we all lose.”
     In at least a dozen known cases to make Apple unlock the iPhones of criminal suspects, federal prosecutors have cited the centuries-old All Writs Act.
     Their efforts largely slipped under the radar until Apple vowed to appeal a California ruling that would help prosecutors unlock the iPhone 5 of Syed Farook, one of the terrorists behind the shooting rampage in San Bernardino that left 14 dead and 22 others wounded.
     With the next hearing in that case scheduled for late March, a ruling Monday out of New York offers another voice in the brewing debate about privacy and security in the United States.
     “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,” U.S. Magistrate Judge James Orenstein wrote on Monday. “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.”
     Orenstein noted that the current state of the law on this topic is more than 225 years old.
     “It would betray our constitutional heritage and our people’s claim to democratic governance for a judge to pretend that our Founders already had that debate, and ended it, in 1789.”
     On a more immediate level, Orenstein’s order means that Apple has no obligation to intervene in the case of Queens resident Jun Feng, who was arrested on June 11, 2014 on suspicion of conspiracy to traffic methamphetamine.
     More than a year into Feng’s case, the government still had not tried to open his iPhone until after he already pleaded guilty in the case. Prosecutors later told the court that they still needed the phone to catch his alleged co-conspirators.
     Orenstein defended Apple against the government’s argument that the company put its own bottom line to sell a product with strong encryption over public safety.
     “Apple is not doing anything to keep law enforcement agents from conducting their investigation,” he said, noting the prosecutors have other ways to obtain the information.
     “If Feng had not engaged the passcode security on his device, or if the government had been able to secure an order compelling Feng to unlock the phone on pain of contempt sanctions, the government might well be in a position to seize the iPhone’s data without Apple’s assistance,” the 50-page opinion states.
     Questioning the government’s interpretation of the All Writs Act, Orenstein said that prosecutors’ legal argument is “so expansive” that it would “cast doubt on the [law’s] constitutionality if adopted.”
     Federal prosecutors have long claimed that “marketing” rather than privacy concerns are driving Apple’s fight against providing the government a backdoor to their products.
     But Orenstein said “that choice is Apple’s to make.”
     “I must take into account the fact that an order compelling Apple to abandon that choice would impose a cognizable burden on the corporation that is wholly distinct from any direct or indirect financial cost of compliance,” he added in a footnote.
     The U.S. Attorney’s Office for the Eastern District of New York declined to comment.
     Apple did not immediately respond to a request for comment.
     

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