Court Rules FBI Can’t Make Apple Open Drug Dealer’s iPhone

| Analysis

Apple in CourtA federal court ruled on Monday that the FBI can not use the All Writs Act to compel Apple to bypass the security features of an iPhone belonging to an accused drug dealer in Manhattan.

The case is similar to, but distinct from, the case that has lit the tech world on fire for the last two weeks involving the slain terrorist Syed Farook. The FBI is attempting to use the All Writs Act in that case, too, but it's in front of a different court.

That judge already agreed with the FBI's argument, and ordered Apple to create a new operating system that would bypass iOS security features and allow the FBI to brute force attack the device. Apple has vowed to fight the order, claiming it to be a dramatic overreach by the government that endangers hundreds of millions of iPhone owners around the world.

The Drug Dealer Ruling

In the Manhattan case, Judge James Orenstein agreed with Apple on the overreach argument. According to The Verge, the judge wrote a 50-page ruling that said:

The extraordinary relief [the government] seeks cannot be considered 'agreeable to the usages and principles of law.' In arguing to the contrary, the government posits a reading of the latter phrase so expansive – and in particular, in such tension with the doctrine of separation of powers – as to cast doubt on the AWA's constitutionality if adopted.

The All Writs Act was signed into law by President George Washington in 1789. Among other things, and in laymen's terms, it gave the courts the power to compel people (and thus companies, eventually) to do things in situations not otherwise covered by statute or law. The FBI and law enforcement has been using that Act more and more frequently in recent years, especially in cases involving modern technology and encryption.

The Wall Street Journal reported that Judge Orenstein took exception to this use of the All Writs Act, and said in his ruling that modern issues of privacy and technology should be decided by modern lawmakers, and not by reinterpreting old laws.

"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," the judge wrote in his ruling.

Far From Over

Privacy advocates might well feel the urge to celebrate this ruling, and they should, but they shouldn't think this means Apple has won the more high profile California case involving the dead terrorist, let alone the broader war.

We have two rulings by two judges in two courts of two states covering two separate cases. FBI Director James Comey admitted in a U.S. House of Representatives hearing that the outcome of the fight with Apple would be "instructive for other courts."

That's true, but so will the Manhattan case. So far, we have one court saying the FBI is wrong to use the All Writs Act in this way, while another court said using that same Act in the same manner was AOK. Both can (and are likely to) be appealed, and dueling opinions almost guarantees those appeals will be heard, possibly all the way up to the U.S. Supreme Court.

At which point, we will have a precedent one way or another.

All that said, Judge Orenstein's ruling and unequivocal language strengthens Apple's legal hand as it fights to protect the privacy and security of iPhone owners.

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Multiple local cases, then Appellate Court, then Federal Court, then Supreme Court that will tell the lower courts to go back and look again, then it gets appealed on something else, and on and on, around and around.

I have a feeling this is going to drag out for ages.

Lee Dronick

Yes, the isn’t over. Congress will have to something about modernizing the Writ and good luck with that.


The full document from Judge Orenstein is actually a pretty good read. It explains the history and meaning of the All Writs Act and many details surrounding its use like the conditions where it is legally applicable and also the fact that there is a discretionary portion, even if legal, and the discussion of what those discretionary parts are and how they apply to the drug dealer’s case. It took a while to read, but I think it was worth it to better understand this part of the law. (I got to the PDF from a Hacker News link.)


I would apologize if I’m abusing my TMO privileges by posting this too-long quote from yesterday’s WSJ, which I found to be an excellent summarization (which IMHO might to prove especially useful to all the debaters in Congress, DOJ, press, etc.):

“Apple Is Right on Encryption’
The FBI doesn’t want merely one phone, and its warrant is legally suspect.
The Wall Street Journal - OPINION - REVIEW & OUTLOOK - March 1, 2016
PART 1 (of 2)
“The Apple encryption conflict has turned nasty, as the Obama Administration, most Republicans and public opinion turn against the tech company. But, lo, Apple won its first court test on Monday, and its legal briefs against the court order to unlock an iPhone used by the San Bernardino jihadists show it has a better argument than the government.

The FBI is attempting to extract information on Syed Rizwan Farook’s device but has been frustrated by Apple’s encryption. So a California magistrate ordered the company to design a custom version of its operating software that will disable certain security features and permit the FBI to break the password. Apple has cooperated with the probe but argues that forcing it to write new code is illegal.

One confusion promoted by the FBI is that its order is merely a run-of-the-mill search warrant. This is false. The FBI is invoking the 1789 All Writs Act, an otherwise unremarkable law that grants judges the authority to enforce their orders as “necessary or appropriate.” The problem is that the All Writs Act is not a catch-all license for anything judges want to do. They can only exercise powers that Congress has granted them.

Congress knows how to require private companies to serve public needs. The law obligates telecoms, for example, to assist with surveillance collection. But Congress has never said the courts can commandeer companies to provide digital forensics or devise programs it would be theoretically useful for the FBI to have—even if they are “necessary” for a search.

Congress could instruct tech makers from now on to build “back doors” into their devices for law-enforcement use, for better or more likely worse. But this back-door debate has raged for two years. In the absence of congressional action, the courts can’t now appoint themselves as a super legislature to commandeer innocent third parties ex post facto.

What makes the FBI’s request so extraordinary is that the iPhone encryption and security methods were legal when they were created and still are. Apple has no more connection to the data on Farook’s phone than Ford does to a bank robber who uses an F-150 as a getaway vehicle.

If the government can compel a manufacturer to invent intellectual property that does not exist in order to invade its own lawful products, then there is no limiting legal principle. Could the FBI require a tech maker, for example, to send a malware worm to a user’s device in the form of a routine update?

The other myth is that Apple is merely being asked to crack “one phone in the entire world,” as Marco Rubio puts it. This is also false. The Justice Department is beseeching Apple to provide software retrofits in at least a dozen public cases, and state and local prosecutors have stacks of backlogged iPhones they want unlocked too. In the New York case Apple won this week, prosecutors want Apple to unlock an iPhone even though the owner has pleaded guilty.

If Apple now writes the program the G-men desire, then the technique will be used in investigations that have nothing to do with terrorism as other prosecutors use the same argument. This is the back door by degrees that Apple CEO Tim Cookdescribes.

FBI director James Comey told Congress last week that the Apple case was “unlikely to be a trailblazer” and that it also would be “instructive for other courts.” Well, which is it? This contradiction isn’t the only reason to wonder if Mr. Comey prefers an encryption legal precedent over Farook’s actual data.

One question is why the phone wasn’t immediately shipped in a faraday bag to Fort Meade. The National Security Agency has a formidable decryption unit, and U.S. spooks probably have the ability to hack Farook’s phone without Apple’s services, especially because it is an older, less sophisticated model.

We bow to no one in defense of antiterror programs whose political popularity waxes and wanes, especially on surveillance. But this case isn’t about “privacy.” This is about engineering security and its implications for the security of all Americans…”

(CONTD. in my next Comment, below.)


(my Comment, PART 2 of 2, with apologies, CONTD.)
“Apple Is Right on Encryption’
The Wall Street Journal -
OPINION - REVIEW & OUTLOOK - March 1, 2016

“… Back doors are engineering vulnerabilities that make devices less secure. But terrorists and criminals will always be able to find some underground encrypted communication channel, so regulating back doors into legal devices achieves little national-security benefit. To borrow a line from James Burnham, if there’s no alternative, there’s no problem.

If Congress is really going to outlaw stronger encryption for law-abiding Americans, well, the political class has the right to make mistakes. But it would be a far more dangerous precedent for the courts to do so without guidance from Capitol Hill.

Mr. Comey may be leading the government to defeat, which makes the White House’s incoherence—backing this unnecessary showdown while claiming to oppose back doors—all the stranger. If this debate really is critical to protecting public safety, then Mr. Comey should appeal to Congress to change the law, rather than insist that the courts should resolve a major policy dispute in his favor.”


Another well-written summary, with an interesting tidbit:
‘Apple Plans to Step Up Security as Congress Debates Encryption’
By Larry Greenemeier - Scientific American - March 1, 2016:

“Apple’s move to aggressively protect customer data using a passcode the company does not store came in September 2014… Google followed suit that November with Android 5.0 ...
… Apple and Google are more the exception than the rule. “Microsoft has engineered a backdoor into its Windows Phone,” Kaufman says. “Even though they haven’t made it publicly available, it’s fairly easy to find.” The company has also been accused of using flawed encryption algorithms supplied by the government in order to get government contracts, including a feature in Windows 10 that automatically uploads a computer’s decryption key to Microsoft’s servers. Chinese companies Huawei Technologies, Lenovo and ZTE are known to have built backdoors into their products at the request of the Beijing government. This and a string of cyber attacks traced back to China in 2013 led the U.S. to ban the Commerce and Justice departments, NASA and the National Science Foundation from buying hardware produced in that country by any company supported by its government.”


And how about this?

‘France could fine Apple $1m for each iPhone it fails to unlock’
ZDNet Tech Today - March 02, 2016
French politicians are calling for tough penalties on tech companies that don’t assist police in criminal investigations.


I found this ZDNet |Zero Day article by Larry Seltzer
very informative:
“How Apple could lock down the iPhone to thwart government unlock orders” (March 3, 2016)

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