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As a subscriber you can listen to articles at work, in the car, or while you work out. Subscribe NowWhen members of Congress grill Apple Inc. Tuesday on why it refused to help the FBI unlock a terrorist’s iPhone, the company will be fresh from a courtroom victory that bolsters its case against the government.
A federal judge blasted the government on Monday, saying it had overreached its authority and that legislators were the ones who should decide how much prosecutors can ask tech firms to do, not courts.
“It’s a very good sign for Apple,” said Alex Abdo, a staff attorney with the American Civil Liberties Union. “The government should not be able to run to court to get the surveillance power that Congress has deliberately kept from it.”
On Monday, U.S. Magistrate Judge James Orenstein in Brooklyn, New York, denied the government’s bid to force Apple to help it gain access to another iPhone, one that belonged to a drug dealer. While his ruling doesn’t constitute a legal precedent and doesn’t bind the California judge who told the company to help the FBI in the terrorist phone case, the idea that this issue belongs before lawmakers rather than courts is one that was echoed by many, including the chairman of the House Judiciary Committee, where Apple’s general counsel and the FBI director will testify.
‘Transparent front door’
“The courts shouldn’t decide this,” Rep. Bob Goodlatte said in an interview Tuesday with Bloomberg TV. “But we need to do it in a careful, thoughtful way that promotes increasing strong encryption while attempting to solve law enforcement’s problems, and not by creating new back-door keys.”
Former National Security Agency Director Keith Alexander agreed that both sides are right and that Apple and the Justice Department need to find a way to compromise, saying in an interview Monday with Bloomberg West that “I’m not for a back door, I’m for a transparent front door.”
Orenstein chided the Justice Department for its approach, saying in the decision that it’s “clear that the government has made the considered decision that it is better off securing such crypto-legislative authority from the courts” than “taking the chance that open legislative debate might produce a result less to its liking.”
‘Open dialog’
U.S. Attorney General Loretta Lynch said she’s pressing for the government and technology industry to find common ground on the issue. In prepared remarks for the RSA cybersecurity conference in San Francisco Tuesday, she said “we do have to be engaged in open dialog, so that we can draw upon each other’s resources, hear each other’s concerns, and learn from each other’s perspectives.”
In testimony submitted ahead of Tuesday’s hearing, FBI Director James Comey defended his agency, saying that without access to information stored on iPhones and other devices, “we may not be able to identify and stop terrorists.”
Impenetrable devices are a “grave, growing and extremely complex” problem, Comey said, while calling for continued debate to ensure privacy and security can co-exist.
The ruling should help in the California case because Orenstein fully supported Apple’s arguments, a company executive said on a call with reporters. The Justice Department said it will appeal his decision.
Orenstein’s decision “lays out in excruciating detail for the government all the reasons why they’ve overreached here,” according to Albert Gidari, director of privacy at the Center for Internet and Society at Stanford Law School.
Strategy change
After aiding prosecutors in unlocking at least 70 iPhones, Apple decided last year that it didn’t want to serve as the government’s helper anymore. Chief Executive Officer Tim Cook said in a blog post on Apple’s website in mid-February that U.S. demands for iPhone access were a “chilling” attack on privacy.
Since then, Apple has rebuffed a dozen U.S. requests for help in cracking encrypted iPhones to solve or prevent crimes. The battle burst into public view after Magistrate Judge Sheri Pym ordered the company to help the FBI before even allowing the company to weigh in. That case concerns an iPhone used by one of the shooters in December’s terror attack in San Bernardino, California.
“It would be absurd to posit that the authority the government sought was anything other than obnoxious to the law,” Orenstein wrote.
“This definitely does strengthen Apple’s hand,” said Kristen Eichensehr, a visiting assistant professor at the UCLA School of Law.
‘Road map’
Orenstein’s decision “lays out a road map for future judges” and is so strong that “it’s possible that Judge Pym will reconsider,” she said.
Manhattan District Attorney Cyrus R. Vance Jr. is also due to appear before the Judiciary Committee. While the FBI has stressed that the California case is about only the one phone, Vance has said Apple’s stance has stymied numerous other investigations.
With Apple and other companies building ever more robust encryption, the outcome of the Brooklyn and California cases could have a lasting impact on personal privacy, national security, law enforcement and the technology industry. Orenstein is one of the first judges to thoroughly explore what the government can and can’t access in these realms.
‘Profit over safety’
In the Brooklyn case – one of at least a dozen across the country in which Apple has recently declined to help investigators get into an iPhone – prosecutors are seeking help bypassing the user’s pass code and downloading the data from an older operating system, iOS 7. The phone in California runs a newer operating system with tighter encryption standards that make it next to impossible to get at the contents without a pass code.
Since Cook published his blog post declaring that Apple would challenge the California magistrate’s order, law enforcement officials across the country have rallied behind the Justice Department. Apple’s stand puts “profit over safety,” said Jonathan Thompson, executive director of the National Sheriffs’ Association. “This has nothing to do with privacy,” Thompson said. “It’s all about money and their brand.”
The case is Order requiring Apple, Inc. to assist in the execution of a search warrant issued by the court et al., 1:15-mc-1902, U.S. District Court, Eastern District of New York (Brooklyn).
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