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U.S. Presses Court to Compel Apple to Help Decrypt Phone

Federal prosecutors argued that an Eastern District magistrate judge who refused to make Apple cooperate with the government's efforts to unlock an iPhone disregarded years of jurisprudence that support compelling Apple to help.

Last week, Magistrate Judge James Orenstein said the All Writs Act of 1789 did not resolve the question of whether Apple could be forced to decrypt the passcode-protected phone of Jun Feng, a defendant in a drug case, and the judge rejected the prosecution's view of the law as "expansive."

Orenstein's ruling followed Central District of California Magistrate Judge Sheri Pym's decision to compel Apple's "reasonable technical assistance" to access the phone of one member of the San Bernardino terror attacks.

The debate on privacy and public safety was one lawmakers had to have now, Orenstein said, adding that, "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."

But prosecutors told Eastern District Judge Margo Brodie in their appeal that the All Writs Act did permit decryption—a proposition that other judges have recognized and that Apple had gone along with before "public relations concerns prompted it to object."

Authorities had a warrant in hand to search Feng's phone, the Eastern District U.S. Attorney's office noted, adding the federal laws were an "incomplete patchwork of statutes addressing various aspects of electronic evidence preservation and collection, but not the matter at hand."

Though Congress did pass laws for certain investigatory techniques, it "never attempted to anticipate all eventualities in a field driven by rapid technological change," prosecutors said.

A judge's "residual authority under the All Writs Act is particularly important in an area like this, where legislation inevitably lags behind technology or risks obsolescence," they said, adding the case "in no way upends the balance between privacy and security" because the Constitution already struck the balance in the Fourth Amendment.

Requiring assistance did not tip the balance, the government said. "It simply enables this court to ensure that its warrant has meaning."

In a statement responding to the filing, Apple said Orenstein "ruled the FBI's request would 'thoroughly undermine fundamental principles of the Constitution' and we agree. We share the judge's concern that misuse of the All Writs Act would start us down a slippery slope that threatens everyone's safety and privacy."

Apple is challenging Pym's order in California.

Brodie, a judge since 2012, is also presiding over Feng's criminal case, U.S. v. Feng, 14-cr-387. Though Feng pleaded guilty for his role in a methamphetamine distribution conspiracy and awaits sentence, prosecutors say their investigation continues.

Like Orenstein, Brodie is a former Eastern District prosecutor.

All Writs Act

The law at the heart of the litigation over accessing the phone, the All Writs Act, says courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law."

In October, prosecutors reached out to Apple for assistance in decrypting Feng's phone. Feng said he had forgotten the passcode.

His phone runs an iOS 7 operating system while the San Bernardino phone is an iOS 9. Beginning with its iOS 8 system, Apple no longer retained the ability to unlock phones where users forgot passcodes.

Apple said it could do an extraction within one to two weeks, upon receipt of a valid search warrant with certain language in the court order, according to the government.

"At no time during these communications did Apple object to the propriety of the government's proposed order," prosecutors said, noting at least 70 other times when Apple had complied with such a request.

In Monday's filing, prosecutors asserted Apple "for the first time ever" objected to the government's use of the All Writs Act once Orenstein deferred ruling in order to hear from Apple about technical feasibility and possible burdens in a public proceeding.

In his October deferral, Orenstein noted legislative efforts to update the Communications Assistance for Law Enforcement Act of 1994, as well as the more recent introduction of bills that would block law enforcement from trying to force companies like Apple into data extraction.

In his subsequent denial, Orenstein said both sides agreed the Communications Assistance for Law Enforcement Act did not force a company to give the sort of assistance at issue.

He agreed with Apple that the omission was "a legislative choice" and said a judge's order conferring "authority that Congress has considered and decided not to enact is not 'agreeable to the usages and principles of law.'"

But the prosecution said no other statutes limited application of the All Writs Act, nor was there any comprehensive legislative scheme that "implicitly precludes obtaining such relief."

Orenstein "formulated what amounts to an unprecedented new limit to the court's power in concluding that All Writs Act relief is also precluded where Congress has merely 'considered and decided not to enact' a law conferring the requested authority," they said.

Orenstein used Congress member opinions "divorced from the actual passage or rejection of legislation, to divine what 'the usages and principles of law' are for purposes of the All Writs Act," said the government, adding that such a "novel precept" had to be rejected.

Though Orenstein said there was little guidance on the meaning of "agreeable to the usages and principles of law," prosecutors disagreed.

They pointed to a 1825 Supreme Court decision, Bank of the United States v. Halstead, 23 U.S. 51, which "clearly stated that courts are free to 'make additions' to and thereby 'enlarge the effect and operation of the process' of the All Writs Act 'to meet whatever changes might take place.'"

The Halstead court said there were no separation of power issues "because the All Writs Act merely gives power 'to the courts over their process,'" prosecutors added.

The decryption order would not be an unreasonable burden on Apple and the company had even conceded the point, the government said.

Prosecutors said Orenstein appeared to be driven "by a forward-looking concern for preventing future government abuse."

Yet Apple could do the decryption without revealing its methods and the Supreme Court "rejected using speculation about future harm as a basis to bar relief in a specific case," the government said.

Eastern District Assistant U.S. Attorneys Saritha Komatireddy, Lauren Elbert and Ameet Kabrawala appeared for the prosecution, joined by Nathan Judish and Jared Hosid, senior counsels in the Justice Department's Computer Crime and Intellectual Property Section.

Apple is represented by Marc Zwillinger, managing member of ZwillGen in Washington D.C., as well as Kenneth Dreifach, a shareholder, and Jeffrey Landis, counsel.

#encrypt #Privacy #Encryption #apple

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