The Big Apple Backs Big Apple

The Big Apple Backs Big Apple

March 1, 2016

Back on February 16, 2016 I reported about the big news the United States District Court for the Central District of California made by issuing an order requiring Apple to devise a means of getting around the encryption on an iPhone belong to one of the terrorists in the attacks in San Bernardino, CA.   Yesterday, Judge James Orenstein of the U.S. District Court for the Eastern District of New York, issued a decision denying a motion by the Government requiring Apple to bypass the passcode security on an iPhone 5s running iOS 7.    The court held that the same statute relied upon in the C.D. Cal. case, the All Writs Act, could not be invoked in this case because Congress had considered legislation that would achieve the same result, but hadn't actually passed it.

 

Orders under the All Writs Act have to consider three factors:

 

1. The closeness of Apple to the criminal act. 

2.  The burden to Apple of complying.

3.  The necessity of imposing the burden on Apple.

 

Specifically with regards to  the third factor, the Court considered  an admission by the Government that Homeland Security had the ability to override the passcode and access and copy record records on it.   The testimony of a DHS expert in another case (from 2015) was cited by the Court to point out the existence of an IP Box technology that while new and finicky, was successful at bypassing passcodes on some Apple devices.   Because there was conflicting evidence about the Government's own capabilities, Judge Orenstein held that it was not necessary to order Apple to assist.  

 

The matter the court ruled upon concerned a device belonging to a defendant charged with the drug trafficking.   The opinion mentions in 70 other instances, in which Apple stated it could unlock the phone if an order was issued requiring it to do so.     Apple faces a dozen pending cases in which it objects to the Goverment's request to bypass a passcode.  

 

Judge Orenstein also states that the Communications Assistance for Law Enforcement Act (CALEA) absolves a company like Apple from providing the assistance the Government demands in the present case.    For the purposes of that Act, the Court held that Apple should be classified as a information service provider and not a telecommunications carrier.   The Act specifies that the former does not have the same requirement to provide assistance to government investigations that the latter does.   

 

The encryption software does not constitute an act by Apple to thwart the Goverment from conducting is investigation.    The  Court distinguished Apple from telephone utilities that supplied the Government with information from pen registers.    Apple is not heavily regulated and does not have a duty to serve the public.   Pen registers were regularly employed by telephone companies to help detect fraud and for billing purposes.   Circumventing passcodes is not something Apple would do in the normal course of its busineess.    Pen registers were not difficult to install, but desigining a means to get around its encryptioin software would divert  personnel, hardware and software, and the Court points out that the cumulative burden of complying with Government orders would effect Apple's normal business operations.

 

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