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Judge Favors Apple In iPhone Unlocking Case In New York (google.com)
The Washington Post reports that Apple has prevailed for the moment in its fight with the FBI over the agency's demand that Apple help them break the security of an iPhone — but not in the California case about the phone belonging to San Bernadino shooter Syed Rizwan Farook -- that more famous case, as we mentioned the other day, is of course not the only case with a phone the FBI would like to peek into. New York federal judge James Orenstein scoffs in his 50-page decision at government arguments that Apple should be compelled to produce a software solution that would give them full access to content of the phone belonging to a drug dealer's phone.
[Orenstein] found that the All Writs Act does not apply in instances where Congress had the opportunity but failed to create an authority for the government to get the type of help it was seeking, such as having firms ensure they have a way to obtain data from encrypted phones.
He also found that ordering Apple to help the government by extracting data from the iPhone- which belonged to a drug dealer --would place an unreasonable burden on the company....
He also expressed concern about conferring too much authority in the government. "Nothing in the government's arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary," he said. Whether the same logic will prevail in California is yet unclear; the New York decision is not binding on any other court.
He also found that ordering Apple to help the government by extracting data from the iPhone- which belonged to a drug dealer --would place an unreasonable burden on the company....
He also expressed concern about conferring too much authority in the government. "Nothing in the government's arguments suggests any principled limit on how far a court may go in requiring a person or company to violate the most deeply-rooted values to provide assistance to the government the court deems necessary," he said. Whether the same logic will prevail in California is yet unclear; the New York decision is not binding on any other court.
To be clear, this was a decision from a Federal Magistrate Judge in the Eastern District of NY. (E.g. Long Island and Staten Island). It is not binding on any other court, but it is a Federal Court Decision, which gives it more weight than most equivalent state court decisions, and it is from a fairly well-respected District. (For example, they are responsible for some of the classic electronic discovery cases). They are not the Southern District of New York, which is the rock star of District Courts--but it has enough persuasive weight that most other courts will take it at least a little seriously. They just aren't required to follow it.
Feel free to scroll through my post history. Under what authority does the judge issue these orders? Nobody has been able to cite where this authority is coming from. Lots of people have told me that I'm wrong, in lots of ways. Nobody has actually answered the damned question or shown where the authority comes from. The judge doesn't have this kind of power.
An example, albeit not a good one, is that even though there's litter on the ground, a judge can't just order a random person to pick it up. There's nobody even charged in this case. There has been no indictment, no arraignment, nothing... There's nobody charged AND if there were, I'm still not sure that the judge has authority to issue this order.
People are still running around calling it a warrant. It's not a warrant. It was never a warrant.
"So long and thanks for all the fish."
When courts are encountering an issue that's been decided before in another court, they often at least consider the other court's rationale, even if it's not binding precedent for them. That's termed "persuasive precedent". It's especially useful when several decisions going the same way pile up; then a party in a subsequent case can say, "every previous court to consider this issue has decided [x]", putting the onus on the other side to explain why the case here should go differently.
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Why do you think someone has to be charged first? You seem to have this very firm idea that its an absolute requirement that someone has to be charged before a court has jurisdiction over them.
They don't.
Search warrants happen all the time before someone is charged, they rely on a judge determining there's probable cause -- these happen BEFORE charges because they're how the initial evidence of the crime is gathered.
This is similar, though its not a search warrant and Apple is not a party to the actual criminal investigation (which makes this all a little bit weird). The authority for this order comes from the All Writ's Act. Its practically a blanket authorization of judicial orders covering anything that's not specifically covered by another area of law.
Its a horrible law, but was passed when the country was young and it hadn't fully developed all of its body of law yet, but whenever there's something novel that happens, the All Writ's Act gets invoked.
Its established in other law that third party companies have a responsibility to assist the executive in exercising its authority -- wire tapping, for example -- provided several tests are passed, such as it not being an undue burden. Apple argues, among other things, that this is an undue burden (and no talking about how rich they are matters: undue burden is a legal distinction that doesn't go away just because you can afford it). But, as with a telecom company and wire taps, no one has to be charged before the judicial order is made requiring the telecom to assist the executive in the wire tapping.
The thing is, that 'established in other law' is not only being stretched by the FBI here, but Congress specifically forbade the executive from mandating certain technological decisions that would lead to them being able to break digital encryption. So the FBI is citing the All Writ's Act to get the order, instead of relying on the CALEA, which specifically addresses what is legally required of companies in the form of assistance provided, and under what limitations such assistance operates under.