E.D.N.Y.: Apple can’t be forced to unlock an iPhone; not the California case

Apple wins first encryption case in E.D.N.Y. Court refuses to order phone opened, via techcrunch. In re Order Requiring Apple, Inc. to Assist in the Execution of a Search Warrant, 15-MC-1902 (JO) (E.D.N.Y. Feb. 29, 2016)( (USMJ Orenstein):

The government seeks an order requiring Apple, Inc. (“Apple”) to bypass the passcode security on an Apple device. It asserts that such an order will assist in the execution of a search warrant previously issued by this court, and that the All Writs Act, 28 U.S.C. § 1651(a) (the “AWA”), empowers the court to grant such relief. Docket Entry (“DE”) 1 (Application). For the reasons set forth below, I conclude that 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. 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. Under a more appropriate understanding of the AWA’s function as a source of residual authority to issue orders that are “agreeable to the usages and principles of law,” 28 U.S.C. § 1651(a), the relief the government seeks is unavailable because Congress has considered legislation that would achieve the same result but has not adopted it. In addition, applicable case law requires me to consider three factors in deciding whether to issue an order under the AWA: the closeness of Apple’s relationship to the underlying criminal conduct and government investigation; the burden the requested order would impose on Apple; and the necessity of imposing such a burden on Apple. As explained below, after reviewing the facts in the record and the parties’ arguments, I conclude that none of those factors justifies imposing on Apple the obligation to assist the government’s investigation against its will. I therefore deny the motion.

. . .

III. Conclusion

In deciding this motion, I offer no opinion as to whether, in the circumstances of this case or others, the government’s legitimate interest in ensuring that no door is too strong to resist lawful entry should prevail against the equally legitimate societal interests arrayed against it here. Those competing values extend beyond the individual’s interest in vindicating reasonable expectations of privacy – which is not directly implicated where, as here, it must give way to the mandate of a lawful warrant. They include the commercial interest in conducting a lawful business as its owners deem most productive, free of potentially harmful government intrusion; and the far more fundamental and universal interest – important to individuals as a matter of safety, to businesses as a matter of competitive fairness, and to society as a whole as a matter of national security – in shielding sensitive electronically stored data from the myriad harms, great and small, that unauthorized access and misuse can cause.

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. 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. 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 1789.41

41. Indeed, as FBI Director Comey observed in the context of the California action: [W]e have awesome new technology that creates a serious tension between two values we all treasure: privacy and safety. That tension should not be resolved by corporations …. It also should not be resolved by the FBI …. It should be resolved by the American people deciding how we want to govern ourselves in a world we have never seen before …. I also hope all Americans will participate in the long conversation we must have about how to both embrace the technology we love and get the safety we need. James Comey, We Could Not Look the Survivors in the Eye if We Did Not Follow this Lead, Lawfare (Feb. 21, 2016, 9:03 p.m.) https://www.lawfareblog.com/we-could-not-look-survivors-eye-if-we-did-not-follow-lead. That “long conversation” among “people deciding how we want to govern ourselves in a world we have never seen before” will of course be moot if courts presume to make that decision for the American people based on a perceived assignment of extraordinary authority by 18th Century legislators. Director Comey’s salutary call for meaningful public debate can therefore be achieved only by recognizing that the All Writs Act does not serve as a mechanism for courts to give the executive branch authority it fails to secure from the legislature.

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. For the reasons set forth above, I conclude that it does not. The government’s motion is denied