Apple wins a round in fight over accessing locked iPhones in criminal investigations

Apple and the FBI are at odds over creating software to unlock an iPhone belonging to San Bernardino shooter Syed Rizwan Farook.

Apple and the FBI are at odds over creating software to unlock an iPhone belonging to San Bernardino shooter Syed Rizwan Farook.

(Erik S. Lesser / EPA)

Apple won the latest round in its battle with the U.S. government over accessing iPhones in criminal investigations on Monday when a federal judge said he would not force the technology company to assist in a drug probe.

In a New York case that mirrors the legal wrangling unfolding over the FBI investigation into last year’s mass shooting in San Bernardino, U.S. Magistrate Judge James Orenstein denied a request from federal prosecutors that he make Apple unlock a drug dealer’s iPhone.

Orenstein, in denying the request made in New York’s Eastern District, rejected the same legal arguments that prosecutors made in the San Bernardino case when they sought an order compelling Apple to help FBI agents access an iPhone used by Syed Rizwan Farook, one of two assailants in the Dec. 2 terror attack at the Inland Regional Center.


In both cases, the thrust of the government’s argument was that the authority to force Apple’s hand rests in the All Writs Act, a centuries-old law that allows judges to issue orders if other judicial avenues are unavailable.

“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,” Orenstein wrote.

Department of Justice officials expressed disappointment, saying they will ask a judge in a superior post to Orenstein to review his ruling in coming days.

“This phone may contain evidence that will assist us in an active criminal investigation and we will continue to use the judicial system in our attempt to obtain it,” the department said in a statement.

While U.S. Magistrate Judge Sheri Pym in Riverside is not bound to follow Orenstein’s ruling when she makes a decision on Farook’s iPhone, Apple executives emphasized that it marked the first time a judge had weighed in on some of the same contentious legal questions.

“Because it is directly on point … I think it’s going to have some persuasive effect for the magistrate in California,” a senior Apple executive said to reporters during a conference call. The executive spoke on the condition that his name not be used.


Last month, Pym sided with the government in a provisional ruling in which she ordered Apple engineers to write new computer software that would allow FBI agents to discover the pass code Farook used to lock his iPhone. The magistrate did so, however, without hearing Apple’s objections and is scheduled to make a final decision after a court hearing later this month.

The fight over Farook’s phone has become a crucial test case in a larger power struggle at play between law enforcement agencies and technology companies over the rules governing access to data contained on electronic devices and servers.

Prosecutors for U.S. Atty. Eileen Decker in the Central District of California have portrayed their request as a narrow one that would affect only Farook’s phone. Apple executives, meanwhile, have framed the case as a full-frontal assault on its customers’ privacy, saying the software the government seeks amounts to a “back door” that hackers could use to gain access to any iPhone.

Although FBI agents have pieced together much about Farook and his wife, who joined him in the attack, they want to examine the contents of the confiscated phone in hopes that will help answer outstanding questions, such as whether the killers had accomplices.

The phone used by Farook runs on Apple’s newest operating system, which includes enhanced security measures and encryption. Worried that Farook probably enabled a security feature on the phone that makes it inoperable after 10 failed attempts to enter the secret security code he selected, agents approached Apple for assistance in getting into the device. Until the correct security code is entered, Apple’s encryption software keeps the contents of the phone scrambled.

FBI agents wanted Apple engineers to write new software that would bypass the 10-attempt limit on the security code and other security measures built into the phone. With this done, agents then planned to use a computer program to churn through the thousands of possible pass codes until hitting upon the right one. Apple refused.


With a showdown looming in California, the case playing out in New York suddenly took on new importance.

In those proceedings, prosecutors asked Orenstein to order Apple to extract the information contained on an iPhone using iOS 7, an older operating system, owned by a defendant in a methamphetamine dealing case. Apple has unlocked phones when ordered by a judge in at least 70 similar cases, according to records filed in the case.

Instead of granting the order, Orenstein raised doubts over whether the All Writs Act gave him the power to do so. He prompted Apple’s attorneys to make their case.

Attorneys for Apple argued that applying the All Writs Act would be a misuse of the law. Though the act is intended to assist judges in areas where their authority is not clearly defined, it does not permit them to make rulings that go beyond the limits of existing laws, Apple lawyers wrote.

Because Congress had rejected passing legislation that would require companies such as Apple to assist the government, prosecutors could not rely on it to force Apple to assist in accessing the phone, the company argued.

The Apple executive said he believed those arguments are amplified in San Bernardino because the FBI wants the company to create new software, a step beyond what federal authorities asked for in the New York case.


Find me on Twitter: @joelrubin

Times staff writer Maura Dolan contributed to this report.


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