Apple's showdown with the FBI over an alleged San Bernardino terrorist’s iPhone has been big news lately, but the company has also been involved in a similar and ongoing legal battle over a different iPhone in law enforcement’s custody in New York. This week, Judge James Orenstein ruled in favor of Apple, reported Wired.
While the case is distinct from the San Bernardino case, there are parallels. In the NY case, the government demanded that Apple disable the security lock on an iPhone 5s running iOS 7. In that case, as in San Bernardino, the government argued that the All Writs Act of 1789, a law that’s as broadly open to interpretation as its age might suggest, granted it the authority to make such a request.
Judge Orenstein, in this ruling, disagrees. Of the All Writs application, he writes that “the government posits a reading…so expansive—and in particular, in such tension with the doctrine of separation of powers—as to cast doubt on the AWA’s constitutionality if adopted.”
Noting that Apple has been ordered under the authority of the All Writs Act to bypass the security of not one but 12 total devices, Orenstein rejects the argument that the All Writs act can be used as a “gap filler” that allows law enforcement to plug in powers that Congress has not yet granted or explicitly denied.
“In particular, unlike the government, Apple contends that a court order that accomplishes something Congress has considered but declined to adopt—albeit without explicitly or implicitly prohibiting it—is not agreeable to the usages and principles of law,” writes Orenstein, in reference to Apple’s argument that the Obama administration and Congress had previously passed on the opportunity to create laws around encryption. It’s also another nudge to Congress that it may be time for those laws to exist.
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