In a case unrelated but entirely relevant to the San Bernardino legal battle, a New York judge has just ruled that Apple cannot be forced to unlock an iPhone for the FBI under the All Writs Act, something George Washington himself had signed into law back in 1789. In this case, the matter revolves around an iPhone belonging to Jun Feng of Queens, New York. The DEA seized his phone while executing a search warrant on Feng’s home back in 2014. When it came time to search the phone, though, law enforcement was stopped by an increasingly contentious issue: the phone was, and still is, encrypted.
Feng, the aforementioned iPhone’s owner, was arrested in summer 2014 and released a short while later, being accused of drug trafficking. Several gadgets described as “mobile devices” were confiscated by law enforcement while raiding Feng’s residence, one of which was his iPhone 5s running iOS 7. Fast-forward to last summer when the DEA sought and was granted a warrant to search the iPhone.
According to a recent court document, law enforcement tried to search the phone, including doing things like turning it on and putting it in airplane mode. Agents couldn’t proceed any further, though, as the phone is locked behind a passcode. The two-week search period ended soon after.
Because of this, the agency set its sights on Apple, seeking the company’s “technical assistance.” The document reads:
There appears to be no dispute that Apple’s response, consistent with its past practice in at least 70 instances, was that it could and would unlock Feng’s phone for the agents, but only if a court issued a lawful order requiring it to do so. Also consistent with past practice, Apple provided the agents with the specific technical language it deemed sufficient to make clear its obligation to provide the services that would allow the agents to gain access to the iPhone’s passcode-protected data.
As such, the government sought to have Apple unlock the iPhone under the All Writs Act, citing things like past cases and a lack of “unreasonable burden on Apple” to do so. It was in October 2015 that Apple filed its opposition to the government’s application, the legal battle of which has been ongoing since.
In the midst of it all, the government was hit with a big speed bump: Feng plead guilty in the case against him. Because the government sought access to the iPhone in order to get evidence against Feng for use in the case, there was no justifiable reason to proceed with pressing Apple for access. Said the judge, “I promptly directed the government to explain why the Application was not moot.”
The government offered a convoluted -- and less than satisfactory -- reason as to why Apple should still proceed to unlock the iPhone, and the legal matter has stumble along since.
Apple decided to take the matter head-on, alluding to the ongoing San Bernardino case and others like it. According to the court document:
On February 12, 2016 – apparently unprompted by any development in this case, but just as apparently, in hindsight, reacting to developments elsewhere – Apple filed a letter in response to the government's submission about the procedural viability of the Application in light of Feng's plea. Apple eschewed comment on whether the government's ongoing hunt for unindicted others, or the prospect of Feng's sentencing, sufficed to keep the controversy alive.
Instead, Apple alluded to "additional requests similar to the one underlying the case before this Court" and the fact that it has "been advised that the government intends to continue to invoke the All Writs Act in this and other districts in an attempt to require Apple to assist in bypassing the security of other Apple devices in the government's possession."* Based on those similar requests and the anticipation of further motions under the AWA, Apple asserted that this matter "is not moot because it is capable of repetition, yet evading review."
*bolding added for emphasis
Apple quickly supplied the court with details on nine other cases covering a dozen iPhones in which the government sought to force Apple’s hand under the All Writs Act. The company directly pointed out the ongoing issue in California, stating that the government is seeking “even more burdensome and involved engineering” from Apple in order to crack an iPhone.
The court has ultimately ruled in favor of Apple. Magistrate Judge James Orenstein, said:
Ultimately, the question to be answered in this matter, and in others like it across the country, is not whether the government should be able to force Apple to help it unlock a specific device; it is instead whether the All Writs Act resolves that issue and many others like it yet to come. For the reasons set forth above, I conclude that it does not. The government's motion is denied.