March 1, 2016 By TAMI ABDOLLAH and LARRY NEUMEISTER
WASHINGTON (AP) — A Brooklyn jurist has scolded the government in a stinging rebuke of arguments it has used to shame Apple for refusing to surrender information from its customers’ iPhones, saying it’s stretching a 1789 law to get “impermissibly absurd results.”
The ruling Monday by U.S. Magistrate Judge James Orenstein in Brooklyn came a day before a Tuesday congressional hearing that will include testimony from FBI Director James Comey and Apple General Counsel Bruce Sewell on encryption and “balancing Americans’ security and privacy.”
Orenstein, ruling in a Brooklyn drug case, noted his decision was not controlling in over a dozen cases nationwide facing the same legal question but “can nevertheless have some precedential value.”
He seemed to be aiming in particular at Apple’s fight against a California judge’s order that it create specialized software to help the FBI hack into an iPhone linked to the investigation of the Dec. 2 San Bernardino, California, attack.
Orenstein belittled some government arguments in both cases, saying it was stretching an old law “to produce impermissibly absurd results.”
He rejected government claims that Apple was concerned only with public relations. He said he found no limit on how far the government would go to require a person or company to violate the most deeply-rooted values.
And he said claims that Apple must assist the government because it reaped the benefits of being an American company “reflects poorly on a government that exists in part to safeguard the freedom of its citizens.”
“The same argument could be used to condemn with equal force any citizen’s chosen form of dissent,” Orenstein wrote.
The New York and California cases hinge partly on whether a law written long before the computer age — the 227-year-old All Writs Act — could be used to compel Apple to cooperate with efforts to retrieve data from encrypted phones.
Orenstein said it could not.
Apple’s opposition to the government’s tactics has evoked a national debate over digital privacy rights and national security.
Last week, the Cupertino, California-based company objected to the California order in court papers, saying the federal government was seeking “dangerous power” through the courts while trampling the company’s constitutional rights.
Orenstein agreed, saying the government has decided “it is better off securing such crypto-legislative authority from the courts” in secret proceedings rather than taking chances in Congress.
The separate California case involves an iPhone 5C owned by San Bernardino County and used by Syed Farook, who was a health inspector. He and his wife Tashfeen Malik killed 14 people during a Dec. 2 attack that was at least partly inspired by the Islamic State group. The couple died later in a gun battle with police.
Orenstein, ruling with an eye to the California case, referenced it multiple times in a 50-page ruling and noted that the government request there was far more “intrusive.”
The New York case features a government request far less onerous for Apple and its cellphone technology; the extraction technique exists for that older operating system and it’s been used before some 70 times to assist investigators.
Since late 2014, that physical extraction technique hasn’t existed on newer iPhones. In California, U.S. Magistrate Judge Sheri Pym ordered investigators to create specialized software to help the FBI bypass security protocols on the encrypted phone so investigators can test random passcode combinations in rapid sequence to access its data.
Orenstein warned that amid the blossoming of computer power, a government theory that a licensing agreement compels manufacturers “to help it surveil the products’ users will result in a virtually limitless expansion of the government’s legal authority to surreptitiously intrude on personal privacy.”
The Justice Department said in a statement that it’s disappointed in the ruling and plans to appeal in coming days. It said Apple had previously agreed many times prior to assist the government and “only changed course when the government’s application for assistance was made public by the court.”
A senior Apple executive said company policy has been to give the government information when there’s a lawful order to do so, but that in New York the judge never issued an order and instead asked attorneys about the constitutionality of the government’s use of the All Writs Act. The executive spoke on condition of anonymity to discuss a pending legal matter.
Apple has since declined to cooperate in a dozen more instances in four states involving government requests to aid criminal probes by retrieving data from individual iPhones.