Objection Before Phone-|Cracking for Feds Is OK | Courthouse News Service
Thursday, November 30, 2023
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Objection Before Phone-|Cracking for Feds Is OK

MANHATTAN (CN) - Just in time for Halloween, a federal magistrate gave the government a fright by restricting its prodigious power to surveil cellphones.

U.S. Magistrate Judge Gabriel Gorenstein's five-page order Friday does not identify any information about the manufacturer, suspect or alleged crime at issue in the case of on his docket. But his ruling is nonetheless notable for the hoops it will make the government jump through to crack a cellphone in the post-Edward Snowden age.

"The government has provided a proposed order that directs the manufacturer to provide 'reasonable technical assistance' in unlocking the device," the ruling states. "The proposed order omits, however, any mention of a process by which the manufacturer may seek to the challenge the order. Courts have held that due process requires that a third party subject to an order under the All Writs Act be afforded a hearing on the issue of burdensomeness prior to compelling it to provide assistance to the government. To the extent the manufacturer believes the order to be unduly burdensome or that it should be reimbursed for expenses, the manufacturer should be given clear notice that it has the opportunity to object to the order."

Gorenstein granted the government's proposed order with new language that says, "to the extent [the manufacturer] believes that compliance with this order would be unreasonably burdensome, it may delay compliance provided it makes an application to the court for relief within five business days of receipt of the order."

The U.S. Attorney's Office did not immediately respond to a request for comment.

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